Citation Nr: 20022062 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 19-03 153A DATE: March 30, 2020 ORDER Entitlement to service connection for a back disability is denied. FINDINGS OF FACT 1. The appellant is the Veteran’s surviving spouse, who was properly substituted as the claimant to continue the Veteran's pending claims and appeal. 2. The Veteran’s back disability was not related to active service. CONCLUSIONS OF LAW 1. The Veteran’s surviving spouse is a proper substitute claimant in this case. 38 U.S.C. § 5121A (2012). 2. The criteria to establish service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1951 to January 1953. During the pendency of the appeal, VA was notified of the Veteran’s death in June 2018. The appellant in this case is the Veteran’s surviving spouse. In a February 2019 letter, the RO notified the appellant that she met the basic eligibility for substitution for this appeal. In cases where the Veteran died after October 10, 2008, and there is already a substitute, the appeal is processed as normal, because the substitute stepped into the shoes of the deceased Veteran. See 38 C.F.R. § 3.1010(a). On July 22, 2019, the appellant’s representative submitted a Motion for Extension of Time for 90 days in order to gather additional evidence and to prepare a brief. On July 26, 2019, the Board issued a decision denying the claim for service connection for a back disability. Subsequently, the appellant’s representative requested that the July 2019 Board decision be vacated. In December 2019, the Board vacated the July 2019 decision and granted the 90-day extension request. That time period has expired, and the Board has received a brief from the appellant’s representative and lay statements from the appellant and the Veteran’s daughter. The issue is now back before the Board for consideration. As for the additional evidence submitted after the February 2019 statement of the case (SOC) was issued, under the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, the additional evidence that the appellant submitted after this SOC is subject to initial review by the Board because the appellant did not request in writing that the Agency of Original Jurisdiction (AOJ) initially review such evidence. See 38 U.S.C. § 7105(e)(1) (2019). Preliminary Matter In 1973, the Veteran was granted pension benefits due to a nonservice-connected back disability. Subsequently, after the Veteran filed a claim for service connection for a back disability, in a June 2017 rating decision, the RO erroneously adjudicated entitlement to a rating higher than 60 percent for a back disability as if the Veteran was already service connected for the condition. However, in an October 2017 rating decision, the RO clarified that entitlement to service connection for a back disability was not granted, adjudicated the claim on the merits, and this appeal ensued. Service Connection for a Back Disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or 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). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Arthritis is a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303 (b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For a showing of a chronic disease in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. 38 C.F.R. § 3.303(b). Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. Id. The presumptive service connection provisions based on “chronic” in-service symptoms and “continuity of symptomatology” after service under 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013) (holding that the “chronic” in service and “continuous” post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to “chronic” diseases at 3.309(a)). If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the ‘chronic’ disease became manifest to a degree of 10 percent within 1 year from date of termination of 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 C.F.R. § 3.307. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). The Veteran asserted that his back disability was related to his active duty service. He was diagnosed with various back disabilities, to include arthritis of the lumbar spine. See e.g., May 2017 VA examination report. For the reasons expressed below, the Board finds that service connection for a back disability is not warranted. After a careful review of all the evidence, lay and medical, the Board finds that the Veteran’s low back disability was not incurred in service and symptoms of arthritis of the lumbar spine were not chronic in service or manifested within one year of separation. The Veteran’s service treatment records are silent for any complaints, treatment, or diagnosis a back disability. A full physical evaluation was done in June 1951 in connection with the Veteran having appendicitis. At that time, he raised no complaints concerning his back, and the physical examination showed negative findings for the Veteran’s back. The Veteran’s separation examination in 1953 showed a normal spine. After the Veteran filed a claim for pension benefits, he underwent a July 1973 VA examination, at which time he complained of pain around his waist at the belt line, pain in the right flank and down the right leg to the calf. The pain was aggravated by sitting and lifting and relieved by lying down. He stated that the pain had been present for one month. The examiner diagnosed lumbar radiculopathy associated with arachnoidal adhesions at lumbar joints. No reference was made to the Veteran’s service or any in-service injury or any history of symptoms back to service. During an additional VA examination in October 1973, the Veteran stated that his back had been hurting in the area of the waist line for about six years and got gradually worse. X-rays revealed degenerative disc disease of L4-L5 and L5-S1. The Veteran made no reference to any injury in service or related the back condition to military service. In his March 2017 claim for compensation, the Veteran made no assertions regarding why he believed service connection for a back disability was warranted. In May 2017, the Veteran underwent a VA back examination, at which time the VA examiner confirmed a diagnosis of degenerative disc disease with x-ray evidence of arthritis of the lumbar spine. The Veteran stated that he was a courier while in Germany during active duty service. He then worked for Georgia Ice Quick Freeze and then worked as a longshoreman for many years but had to stop due to his back condition. The examiner noted that the Veteran and his family (daughters and spouse) were all poor historians and could not remember any specific events related to injuring his back in service. He added that he could not make a living due to his back condition and denied any traumatic back injuries. In the January 2018 notice of disagreement and February 2019 substantive appeal, neither the Veteran nor the appellant made any assertions regarding the onset of the Veteran’s back disability nor made any references to his active duty service. In a February 2020 statement from the Veteran’s daughter, she recalled the Veteran telling her that he fell from a trolley while working as a courier in the military. She reported that his back issues caused constant pain. He walked with a limp and slouched. She recalled his condition worsening over time, and he limited his activities outside of work. She recalled the Veteran enduring pain throughout her entire life. In a February 2020 statement from the appellant, she recalled that the Veteran’s back injury began when he was stationed in Germany as a mail courier. One day, while working, he made an attempt to get on the trolley when he slipped off and fell onto his back. She reported that he told her he went to the doctor but that she did not remember any treatments or follow-up visits. However, he was always in pain. She reported that he was involved in a car accident later, which further aggravated his back condition. She noted that there was a time when he used to build things, but he eventually could not do that. He also was not able to walk for any long periods of time. Normal functions, like grocery shopping, and going to church, were a struggle, and he had pain all the time, even while sitting or lying down. As aforementioned, arthritis is a “chronic disease” and as such is subject to consideration of presumptive service connection. Here, the Board notes that due to the lack of medical evidence, there is no competent objective evidence to show that the Veteran’s arthritis manifested to a degree of 10 percent within one year after separation from service. Specifically, arthritis was not shown until the 2017 VA examination, decades after separation from service. Another way to establish service connection for a chronic disease on a presumptive basis is through continuity of symptomatology. Here, the Board finds that to the extent the Veteran suggested with this claim that symptoms of the currently diagnosed back disability were continuous since service, such assertions are internally inconsistent and not credible. As discussed in detail above, after discharge from active duty in January 1953, it was not until 1973, two decades later, and after years of working as a longshoreman, that the Veteran complained of back problems. More importantly, at the time, he specifically indicated that the back problems began, at most, six years earlier. Namely, around 1967, approximately 14 years after discharge from active duty service. In the course of seeking treatment for his back, he did not mention an injury during service. The mere absence of medical records does not contradict a Veteran’s statements about his symptom history. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Significantly, during the May 2017 VA examination, the Veteran denied sustaining any traumatic injury to his back and could not recall any circumstances of back problems in service. More importantly, any allegations suggesting continuous symptoms since service are expressly refuted by the statements the Veteran made in 1973 that his back condition began 6 years earlier. That statement, made long before he sought service connection for the back condition, is more persuasive, not only because it was not made in connection with a claim for service-connected disability benefits, but also because several decades later, the Veteran was noted to be a poor historian, so any history he gave in 1973 (far closer to his time in service) was more likely to be accurate. In this case, the Veteran’s more recent statements implying his back pain dated to service were contradicted by past records, to include during service, where no back complaints were documented, during separation from service, where it was noted that he had a normal spine, and post-service treatment records, in which he never related the back problems to service but rather to many years working as a longshoreman. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Kahana, 24 Vet. App. at 440 (Lance, J., concurring) (citing Fed. R. Evid. 803 (7) for the proposition that “the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded”). This approximately fourteen-year period without problems weighs against the claim. Therefore, his failure to report any complaints of low back pain prior to, at most, 1967 is persuasive evidence that he was not then experiencing any relevant problems and outweighs his more recent recollection to the contrary. Here, the Board is not only relying on the absence of evidence, but also on the contemporaneous, affirmative lay reports of symptoms and history by the Veteran where he specifically reported in 1973, two-decades after discharge, that his back problems began six years earlier. Again, there were no indications in 1973 that he was a poor historian, but such was noted in 2017, so his 1973 statements as to his history are far more persuasive. To the extent that the Veteran asserted otherwise when making this claim, the Board finds those assertions made for VA compensation purposes were not credible, because they were contradicted and outweighed by the more contemporaneous lay and medical evidence, including the Veteran’s own statements at service separation and while seeking treatment. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). The Board is not implying that the Veteran purposely gave contradictory statements; it may merely be that with the passage of time his recollections were not entirely accurate. Likewise, the Board has considered the February 2020 statements from the appellant and the Veteran’s daughter. These statements allege that the Veteran told his daughter and the appellant that he hurt his back by falling from a trolley while working as a courier in the military. The appellant went on to report that the Veteran was involved in a car accident later, which further aggravated his back condition. Even accepting that the Veteran may have told his daughter and the appellant at some point in time that he injured his back in service, that does not necessarily lead to a conclusion that particular incident caused the back problems that originated later in life. The fact remains that no back complaints were documented during service, it was specifically noted upon separation from service that he had a normal spine, and he related his back pain to many years working as a longshoreman in post-service treatment records. The Veteran himself reported in 1973 that his back pain began 6 years prior, or 14 years after his separation from service. Therefore, even if he slipped during service, his statements in 1973 showed he did not report chronic symptoms after that incident. The February 2020 lay assertions are not entitled to probative value in establishing that the Veteran developed a back disability as a result of his military service, when the Veteran himself during his lifetime attributed onset of the back symptoms to approximately 1967. The Board also finds that the claim is not warranted on a direct basis. While the Veteran asserted that his back condition was related to service, he was a lay person, and, while competent to relate observable symptoms such as pain, he was not competent to relate a medically complex spinal disorder to his military service, as he did not possess the requisite medical knowledge, training, or experience to do so. Likewise, there is no indication in the record that the appellant or his daughter possess the requisite medical knowledge, training, or experience to do so either. Moreover, a mere conclusory generalized lay statement that a service event or illness caused the claimant’s current condition is insufficient to establish medical etiology or nexus. Waters v. Shinseki, 601 F.3d 1274 (2010). There is absolutely no evidence in support of the Veteran’s claim that would establish a nexus between the back disability and his active duty service. The weight of the competent and credible evidence demonstrates no relationship between the Veteran’s diagnosed back disability and active duty service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a back disability, on direct and presumptive bases, 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. Duties to Notify and Assist Lastly, in a March 2020 statement, the representative requested that this case be remanded with instructions that a new VA medical opinion be provided based on a review of recent lay statements that describe a history of problems dating back to the Veteran’s service. In this regard, the Board notes that the Veteran was provided with a VA examination in May 2017, which did not include a medical opinion. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Here, for all the reasons given above, there is simply no persuasive lay or medical evidence establishing that an event, injury, or disease occurred in service for the claimed back disability. As discussed above, any lay assertions regarding an onset of back pain in service have been determined to be either not credible or not probative, and outweighed by other evidence of record. Therefore, the Board finds insufficient evidence to require an examination under McLendon, and no further development is warranted. Neither the Veteran nor the appellant (nor their attorney) has raised any specific issues with the duty to notify or duty to assist, other than the aforementioned request for a VA medical opinion. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The attorney made generic, boilerplate arguments in the VA Form 9 and notice of disagreement but raised no concerns specific to this case. Therefore, the Board does not need to discuss VA’s compliance with the duties to notify and assist. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Durham, 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.