Citation Nr: 1808644 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 12-22 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a back disability, including as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Timothy M. White, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Samuelson, Counsel INTRODUCTION The Veteran had active service in the Air Force from June 1981 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Muskogee, Oklahoma. In June 2013, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. In October 2014 and December 2016, the Board remanded the claim for additional development. 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 The preponderance of the medical evidence shows that the Veteran's back disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin, including to his service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his low back problems began after he jumped out of an aircraft in July 1982 and felt pain radiating to his low back. He contends that he was treated the next day for his back pain at Norton Air Force Base. See February 2016 statement. The Veteran also contends that his back condition is due to his altered gait which was caused by his service-connected right ankle condition. See November 2009 claim; June 2013 Board hearing transcript, p. 12. At the January 2016 VA examination, the Veteran reported his back pain started in 1987 and he had low back pain on and off since then. He stated that he had to walk with his right foot turned outward since his ankle injury in 1981 in service, and his back "went out" in 1987 when he fell off an airplane and again in 1999 and 2003. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In letters dated August 10, 2017 and August 28, 2017, the Veteran's representative contended that VA treatment records from Jack C. Montgomery (Muskogee) VAMC from January 1, 1992 through August 18, 1997 were missing from the claims file and should be requested through the AMIE system. Since then, these records were requested by the RO on September 20, 2017 and October 20, 2017. An October 30, 2017 Report of General Information shows that the RO contacted Muskogee VAMC and they responded that there were no records for that time period. The RO determined these records cannot be located and therefore are unavailable for review. The RO further determined all efforts to obtain the needed information have been exhausted and further attempts to obtain the records would be futile. The Veteran was notified of this in an October 31, 2017 letter. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The Board notes that service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (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 v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran has current diagnoses of degenerative disc disease of the lumbar spine, lumbar radiculopathy, herniated disc, spinal stenosis, and degenerative joint disease. See August 2015 VA treatment record; November 2015 private treatment record from Dr. Parchuri; January 2016 VA examination. The Board acknowledges the Veteran's contention that his back condition began after a fall in service in July 1982. See February 2016 statement. The Board also acknowledges the statement from the Veteran's sister, A.B.G., received in October 2017, in which she contends that the Veteran suffered tremendously with back issues since he served in the military after high school. However, the Board finds these statements are not credible as the service treatment records show no complaints, diagnosis, or treatment for a back condition during service and no evidence of a fall in July 1982. See Gardin v. Shinseki, 613 F.3d 1374, 1379-80 (Fed. Cir. 2010) (approving the Board's analysis where it found the Veteran's lay statements not credible because they were contradicted by contemporaneous SMRs). The earliest medical evidence of a back pain is a November 1998 VA treatment record. Further, the Veteran and his sister's contentions are inconsistent with the Veteran's prior statement and testimony. At the January 2016 VA examination, the Veteran reported that his back pain started in 1987. At the June 2013 Board hearing, the Veteran testified that his back condition began after service and was caused by his right ankle condition. See June 2013 Board hearing transcript, p. 12. The claims file contains no medical evidence showing that the Veteran's arthritis manifested within one year of his service discharge in July 1984. There is also no medical opinion of record relating a back disability to the Veteran's service or a service-connected disability. After a review of the records, the January 2016 VA examiner determined the Veteran's back condition is less likely than not proximately due to or aggravated by the Veteran's service-connected right ankle condition. Rather, she determined the Veteran's back condition was more likely the result of obesity, age, and general wear and tear. She determined the natural progression was not altered or worsened by any event and/or condition that occurred and/or expressed during active service. The examiner noted she found no studied in the medical literature that show or suggest an association between ankle trouble and the decades later development of degenerative joint disease and lumbar spinal stenosis. The January 2016 examiner provided an addendum opinion in August 2017 in which she provided negative nexus opinions for direct and secondary service connection. In regard to direct service connection, her rationale was that the service treatment records show no low back pain during service and the medical record shows the first documented report of back pain in November 1998. In regard to whether the Veteran's back condition is secondary to the Veteran's service-connected right ankle and/or right knee condition, the examiner's rationale was that there is no evidence in the record that the Veteran's low back pain started due to right ankle or knee trouble. Rather, she determined there was an increase in the Veteran's low back pain in the fall of 2015 after a motor vehicle accident in August 2015 leading to an epidural steroid injection in October 2015 and physical therapy in early 2016. She also noted the Veteran is having somewhat less trouble with low back pain since his gastric bypass surgery in late 2016 resulting in weight loss, which supports that much of the low back trouble was due to obesity, and less likely due to ankle and knee conditions. Additionally, she notes that the medical literature does not support knee and ankle pain being a major cause of chronic low back pain including degenerative joint disease, unless perhaps there is leg length discrepancy which is not the Veteran's situation. The VA examiner's opinion is competent because she is qualified through education, training, or experience to offer medical diagnoses, statements, and opinions. 38 C.F.R. § 3.159(a)(1). Her opinion is credible based on its internal consistency and the examiners' duty to provide truthful opinions. The Board further finds that the VA examiner's opinions are most probative because she considered the Veteran's medical records, discussed his medical history, provided unequivocal and conclusive opinions, and offered clear reasoning for the Veteran's diagnoses and why the Veteran did not have a condition related to service or secondary to a service-connected disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As the most probative evidence of record shows that the Veteran's back disability is not related to service or a service-connected disability, the preponderance of the evidence is against the claim, and service connection for a back disability is denied. ORDER Service connection for a back disability is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs