Citation Nr: 20007701 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 08-07 639 DATE: January 29, 2020 ORDER Entitlement to service connection for a lumbar spine disability, to include degenerative arthritis of the spine, is denied. FINDINGS OF FACT A lumbar spine disability, to include degenerative arthritis of the spine, manifested more than one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSION OF LAW A lumbar spine disability, to include degenerative arthritis of the spine, was not incurred in or aggravated by service, and such service connection may not be presumed. 38 U.S.C. §§ 1110, 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 The Veteran served on active duty in the Army from October 1959 to October 1962, and again from December 1962 to April 1982. This case comes before the Board of Veterans’ Appeals (Board) on appeal from November 2004, August 2009, and September 2010 rating decisions issued by Department of Veterans Affairs (VA) Regional Offices (ROs). By way of background, in the November 2004 rating decision, the RO denied, in relevant part, entitlement to service connection for a low back disability. In the August 2009 rating decision, the RO declined to reopen the claim for service connection for a low back disability. In the September 2010 rating decision, the RO again declined to reopen a claim for service connection for the low back disorder, now described as spondylosis and degenerative changes of the lumbar spine at the L4-5 level with history of fusion. The Board remanded the issue on appeal for additional development in August 2013, May 2017, and March 2018. The directives having been substantially complied with, the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes the presence of two other appeals from this Veteran, but as neither are yet certified by the Board, they are not under the Board’s jurisdiction, and as such will not be considered here. In April 2013 and August 2017, the Veteran testified at hearings conducted before two different Veterans Law Judges (VLJ). Transcripts of those hearings have been associated with the claims file. In April 2013, the Veteran gave testimony at a hearing before Veterans Law Judge (VLJ) Thomas H. O’Shay. In August 2013, the Board remanded this matter for additional development and adjudication. In May 2017, the Board remanded this matter for an additional hearing before the Board. Accordingly, in August 2017, the Veteran gave testimony at a hearing before VLJ Michael A. Pappas. VA law requires that a VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107 (c) (2012); 38 C.F.R. § 20.707 (2018). As is the case here, when two hearings have been held by different VLJs concerning the same issue or issues, the law also requires that the Board assign a third VLJ to decide that issue or issues because a proceeding before the Board must be assigned either to an individual VLJ “or to a panel of not less than three members of the Board.” 38 U.S.C. § 7102 (a) (2012); 38 C.F.R. § 19.3 (2018); Arneson v. Shinseki, 24 Vet. App. 379 (2011). In November 2017, the Board contacted the Veteran via letter to clarify whether the Veteran would like the opportunity for an additional BVA hearing held before a third VLJ who will be assigned to the panel to decide his appeal. The Veteran was notified that he had 30 days from the date of the letter to respond, and should there be no response, the Board will assume that he does not want a third hearing and will proceed accordingly. The Veteran responded by notifying the Board in January 2018 that he did not want a third hearing and for the Board to proceed with the adjudication of his claims. VLJ K. J. Alibrando has been added to this panel and those three VLJs will, as previously in March 2018, adjudicate this appeal together. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). Under 38 U.S.C. § 5103A(b)(1), VA is required to make reasonable efforts to obtain relevant records that the claimant has adequately identified and authorized VA to obtain. In a disability compensation claim, VA must make efforts to obtain the claimant’s service treatment records, if relevant; other relevant records pertaining to the claimant’s active military, naval, or air service that are held by a governmental entity; VA medical records or records of examination or treatment at non-VA facilities authorized by VA; and any other relevant records held by any Federal department or agency. 38 C.F.R. § 3.159(c)(3). During hearing testimony in both the April 2013 and August 2017 hearings with two of the undersigned VLJs, the Veteran testified that he believes his records were erroneously sent to the VA office in Philadelphia because of a Veteran there with the same name who was seeking care for chronic lymphocytic leukemia. The Veteran testified each time that he was told that this other Veteran with cancer died and his records, erroneously associated with a different Veteran with the same or similar name but now deceased, were sent away. The Veteran explained he told the VA about the records mix-up and also pointed out he has never had nor claimed any cancer or any related ailment. Records in the claims file from September 2006 and December 2006 document the Veteran’s assertions about the misattributed claim and verify the assertions the Veteran made during his two hearings with the undersigned VLJs. On July 12, 1973, a fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri, destroyed approximately 16 to 18 million Official Military Personnel Files. An estimated 80 percent of records of Army personnel discharged between November 1, 1912, and January 1, 1960, and 75 percent of records of Air Force Personnel (with names alphabetically after Hubbard) discharged between September 25, 1947, and January 1, 1964, were destroyed in this fire. When the NPRC informs VA that records were lost in the 1973 fire, or when there is other evidence in the file that a claimant’s service records have otherwise been lost or destroyed, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). The heightened duty to assist may require VA to request alternate source records from the NPRC. VA must also inform a claimant that his or her records have been destroyed and must inform him or her of the alternate information, such as lay statements, that he or she could submit to support contentions of what occurred during service. However, the Veteran was on active duty from October 1959 to October 1962, and from December 1962 to April 1982, when he retired from active military service. As his military personnel and medical records would have been with the Veteran at his duty stations during his active service, they would have not been at the NPRC at St. Louis in 1973, and thus the Board finds it extremely unlikely that the Veteran’s records were destroyed then. The Veteran’s VA claims file indicate that VA sought records from the NPRC in March 2004 and that the NPRC no longer had any records associated with this Veteran. The Veteran has testified in his hearings that he was not aware his medical records were missing in substantial part until he filed his VA claim in 2004. While VA has put a formal finding of nonavailability dated April 27, 2009 into the Veteran’s file, other evidence in the file indicates that the records were gone from NPRC by this time, having been sent to VARO Philadelphia in March 2004. The records were in paper format at that time; the Veteran’s current records indicate his claims file was scanned into an electronic file in October 2014. Pursuant to the Veteran’s statements during testimony before VLJ O’Shay and VLJ Pappas, and the remand of March 2018 signed by all three of the undersigned VLJs, VA again conducted a records search in multiple areas based on the Veteran’s theories, at the NPRC, and at VA Regional Office and VA Medical Center Philadelphia. The National Archives and Record Center, custodian of the NPRC archive, responded with a negative reply in a letter dated April 15, 2019, and VARO and VAMC Philadelphia responded with a negative reply on September 7, 2019. The RO then sent a letter to the Veteran dated October 31, 2019, with a copy to his agent, regarding the search efforts and negative outcomes for any additional records beyond those already in the claims file. The Board thus finds that VA has met its duty to assist pursuant to 38 U.S.C. § 5103A(b)(1) and 38 C.F.R. § 3.159(c)(3) with regard to a records search for the Veteran’s claim. The Veteran in this case has not referred to any other deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection for Lumbar Spine Disability, to include Degenerative Arthritis of the Spine 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 service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) 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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For arthritis, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection for degenerative arthritis can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Proof of a current disability is a threshold to establishing service-connection for any claimed disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To be a present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2018). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis – Lumbar Spine Disability The Veteran contends that his current lumbar back disability derives from his service in Vietnam in 1968, when he fell into a fighting position while during combat operations in and near Da Nang Air Base, Vietnam, during the 1968 Tet Offensive. The Veteran’s service treatment records contain no examinations where the Veteran complained of lower back pain either during the examination itself or in the accompanying report of medical history, to include the January 1982 retirement examination. The Veteran’s service treatment records do show one complaint of lower back pain in September 1981, with no further follow-up treatment noted. The earliest medical record regarding the lower back comes from a private outpatient record in November 1992, where the Veteran received a CT scan of his lumbar spine. The interpreting physician noted bilateral spondylolysis at L-5 with mild spondylolisthesis of L-5 to S-1, with a suspected disc herniation there. In December 2003, a private medical record indicates the Veteran had a lumbar-area laminectomy, and the operating physician noted a diagnosis of spondylolisthesis with L-5 radiculopathy, status post decompression laminectomy. The Veteran received his first VA examination that included examination of the spine in November 2004 as part of a general medical examination. The Veteran noted he had back surgery done in December 2003 where he had three disks removed from his lower back, as well as two broken bones. He also told the examiner he may have hurt his back during his service in Vietnam in 1968, though he said at the time he did not recall a specific injury or incident that triggered his lower back problem. The examiner noted the history of the Veteran’s back surgery within the previous year and stated his examination was “normal,” with no further opinion as to service connection. The Veteran received a VA compensation and pension examination specific to his lumbar spine in May 2008. The physician examiner, an orthopedic specialist, noted thoracolumbar spinal abnormalities in all ranges of motion, but without any pain on motion. Surgical hardware was present fusing the lower lumbar spine from L-4 to S-1, but the rest of the disk spaces were considered normal. The examiner noted minimal marginal degenerative formation in the lower lumbar spine, but with no fractures or dislocation. The examiner’s formal diagnosis was spondylolisthesis L-5 to S-1 with a disk bulge at L-4 to L-5 and L5- to S-1, dating from approximately 1992 in his estimation. This examiner provided a negative opinion for service connection, saying the Veteran’s current lumbar spine problems were not caused by or a result of back pain shown in military service. The examiner’s rationale was that spondylolysis was a spine bone defect often held together by gristle material can be asymptomatic for life and is symptomatic only when the soft tissue gives way and the spine shifts and becomes spondylolisthesis, a widening of the defect with the shift pressing upon the nerves. The examiner noted the Veteran’s service records do not show anything to suggest that this spondylolysis worsened until approximately 2003, even with the Veteran having endured a motor vehicle accident in 1998. The examiner continued, noting that the Veteran’s complaints about his shifting spine were first noted in March 2003, 21 years after retiring from active service. The Veteran received another VA examination for his lumbar spine in September 2019. This examiner diagnosed degenerative arthritis of the spine, along with spinal fusion and spinal stenosis. The Veteran described his current symptoms as having some pain in the left side of the lower back, and the examiner noted the 2003 spinal surgery. The Veteran reported no flare-ups, and the examiner noted there was no functional impairment of the thoracolumbar spine. Range of motion measurements were below normal measurement but did not contribute to functional loss or impairment. No pain was noted on motion. No guarding or muscle spasm was noted, and there were no additional factors contributing to disability. Muscle strength was five on a scale of five and reflexes were normal. No radiculopathy or other neurological impacts were noted. No ankylosis or intervertebral disc syndrome were noted. This examiner provided a negative opinion for service connection, saying it was less likely than not, less than 50 percent probability, that the Veteran’s lumbar back disabilities had their onset in service or are otherwise related to service. The examiner’s rationale was that the Veteran had no record of complaints in his service medical records for any back problems other than the one 1981 complaint of back pain that resolved prior to his service retirement examination in January 1982. The examiner noted the Veteran’s lumbar spine conditions of spinal stenosis, disc bulge, and osteoarthritis of the lumbar spine all as evidence of degenerative changes over time, present in the majority of individual with aging, and were unlikely the result of a fall in the military that occurred in 1968 with any traumatic aftereffects. The Board finds the November 2004, May 2008, and September 2019 VA examination reports and opinions to be of great probative value. Indeed, the examiners considered the Veteran’s contention, the claims file, and clinical medical evidence before providing a negative opinion in the latter two instances. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiners’ negative opinions were supported by a sufficiently clear and well-reasoned medical rationale and was consistent with the verifiable facts regarding the Veteran’s contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). The Board acknowledges that the Veteran is competent to testify as to his beliefs that his disabilities are related to service. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; “[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 471 (1994). Here, the Veteran is competent to testify about his symptoms relating to his claimed lumbar back condition. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology of a lumbar back condition or injury. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value. The Board also notes the inconsistencies from the Veteran’s first description of his lumbar spine disability, when he described to the November 2004 VA examiner that he could not recall a specific injury or incident that triggered his lumbar back pain, to the later remarks to the May 2008 and September 2019 VA examiners, and to the two VLJs in the April 2013 and August 2017 hearings, where he described a specific incident of having fallen into an entrenched fighting position in January 1968 during the Tet Offensive. Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam). In addition, the Board finds that the gap in time between the Veteran’s last date of service, April 1982, to his initial evaluation by any medical provider regarding his low back complaints in November 1992 to be probative of a lack of nexus between the diagnosed current disability and active service. A negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There are no competent medical opinions of probative value in favor of a positive nexus to active service from any VA examiner or medical treatment provider from any source. Upon review of the record, the Board concludes that entitlement to direct service connection for a lumbar back disability is not warranted. The Board notes a current diagnosis of the lumbar spinal stenosis with osteoarthritis, and thus the requirement for a current disability is shown. The Board acknowledges the Veteran’s contentions, and the Veteran’s post-service statements are noted. However, service treatment records are silent for any mention of any chronic lumbar back disability, to include his active service from October 1959 to April 1982, and there is no competent evidence to tie the current assertion to any in-service disease or injury, to include the service-connected left ankle disability. The Board notes the highly probative November 2004, May 2008, and September 2019 VA examinations and opinions which indicate the Veteran’s lumbar back disability is likely not related to active military service, but likely began many years after service. The Board finds that these conclusions are not contradicted by any comparably probative or persuasive competent evidence of record. Therefore, the claim of entitlement to service connection for a lumbar back disability must be denied. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. §§ 3.303. With regard to possible presumptive service connection for degenerative arthritis of the lumbar back, the weight of evidence shows no chronic symptoms of these conditions during active service, no continuous symptoms of the conditions since service, and that the conditions did not manifest to a compensable degree within one year of service. As such, presumptive service connection is not warranted. 38 C.F.R. §§ 3.303, 3.309. Based on the above, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran’s claimed lumbar back disability was not incurred in service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a lumbar back disability, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.