Citation Nr: 0723683 Decision Date: 08/01/07 Archive Date: 08/15/07 DOCKET NO. 05-37 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty from January 1985 to September 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDING OF FACT A back disability, diagnosed as mechanical low back pain with a small posterior annular tear at L5-S1 and mild bilateral facet disease, is not attributable to service. CONCLUSION OF LAW A back disability, diagnosed as mechanical low back pain with a small posterior annular tear at L5-S1 and mild bilateral facet disease, was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1131 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the claimant's claim, VCAA letters dated in June and August 2003 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letters told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). If there is VCAA deficiency, i.e., VCAA error, this error is presumed prejudicial to the claimant. VA may rebut this presumption by establishing that the error was not prejudicial. See Simmons v. Nicholson, 487 F. 3d 892 (2007); see also Sanders v. Nicholson, 487 F. 3d 881 (2007). The claimant's service medical records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The veteran indicated that he had received VA and private treatment, post-service. The RO contacted the private facility. The private facility indicated that fees were charged for obtaining records. The veteran was notified that VA does not pay for these fees. The veteran was told that he could furnish these records. He did not do so. If a claimant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. See Dusek v. Derwinski, 2 Vet. App. 522 (quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991)). The RO also attempted to obtain all VA medical records. The claimant indicated that he had been treated from January 1991 to December 1992 and from January 2002 to December 2002 at the Milwaukee VA Medical Center. However, multiple requests for these records yielded negative responses. In September 2005, the RO made a formal determination that there were no records for review for these time periods. The Social Security Administration (SSA) was contacted. The SSA indicated that the veteran was not in receipt of SSA benefits and that agency had no medical records. Thus, there is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The claimant was also afforded a VA examination in November 2003. 38 C.F.R. § 3.159(c)(4). The records satisfy 38 C.F.R. § 3.326. As there is no indication that any failure on the part of VA to provide additional notice of assistance reasonably affects the outcome of this case, the Board finds that such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Since the Board has concluded that the preponderance of the evidence is against the claim of service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 38 C.F.R. § 3.303(b). In addition, 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). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Court of Appeals for Veterans Claims (Court) has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the U.S. Court of Appeals for the Federal Circuit, which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). The service medical records reflect that the veteran was seen several times during service for recurrent back pain. On February 16, 1985, the veteran was seen for a report of back pain of 2 days' duration. There was no associated dysuria or frequency of urination, abdominal pain, or pain radiating to the lower extremities. On March 4, 1985, the veteran was seen for back pain of 2 weeks' duration. Again, there were no associated symptoms and no trauma within the last 72 hours. In April 1985, the veteran was diagnosed as having lumbosacral strain or sprain. Thereafter, complaints of back pain were continued. On September 5, 1985, the veteran was seen for back pain of 6 months' duration. The veteran related that he had hit his back on a protruding brick 6 months ago and had been treated since that time to include with physical therapy. However, whenever he would lift, the problem returned. On examination, range of motion was painful, but there were no abnormalities or spasms. The diagnosis was low back pain secondary to trauma. He was given exercises to strengthen his back muscles, pain medication, and a "capt coster" was ordered. In July 1986, the veteran was afforded a VA separation examination. On his Report of Medical History, he reported that he had recurrent back pain. However, on physical examination, the spine was normal, musculoskeletal system was normal, and neurological system was normal. In May 2003, the veteran's claim for service connection was received. He stated that he had a low back disability which had its onset during military service in a traumatic accident during basic training. He related that he had been treated many times since service for this condition and would submit medical documentation to support his claim. Thereafter, the veteran did not in fact submit any supporting medical documentation. Although VA attempted to obtain supporting medical records, as noted above, those attempts were futile. In November 2003, the veteran was afforded a VA examination. The claims file was reviewed. It was noted that the veteran was treated during service on multiple occasions for back complaints. The veteran reported that he had been seen, post-service, at a private hospital, underwent a magnetic resonance imaging (MRI), and participated in physical therapy. The veteran did not have any of these supporting records with him. Physical examination resulted in a diagnosis of mechanical low back pain. In addition, x-rays revealed a small posterior annular tear at L5-S1 without convincing evidence of herniation. There was mild bilateral facet disease. Also, testing revealed no significant exiting nerve root or spinal canal compromise. The examiner opined that based on the history, physical examination, and diagnostic tests, it was not at least as likely as not that the current low back condition was service connected. The examiner explained that after the veteran's discharge from service, he did not see any physician on an ongoing basis. Although he reported that he had private treatment for a pinched nerve, he did not provide any records of that treatment. It was noted an MRI had not shown any significant nerve root compromise. Thus, it was not at least as likely as not that the current low back condition was service connected. The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Hensley v. Brown, 5 Vet. App. 155 (1993). Neither the Board nor the veteran is competent to supplement the record with unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Conversely, health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis. Cohen v. Brown, 10 Vet. App. 128 (1997). The veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, while the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno. Therefore, he cannot provide a competent opinion regarding diagnosis and causation. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Jandreau v. Nicholson, No. 2007-4019 WL 1892301 Vet. App. July 3, 2007), the Federal Circuit Court determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr v. Nicholson, No. 04-0534 WL 1745833 Vet. App. June 15, 2007). In this case, the veteran is competent to report inservice back pain and that he injured his back during service. His reports of back injury resulting in back pain/lumbosacral strain or sprain during service have been substantiated. The veteran is also competent to report post-service back pain and treatment. However, the issue does not involve a simple diagnosis and the veteran is not reporting a contemporaneous medical diagnosis. He refers to past medical treatment. The veteran's assertions regarding symptoms of the claimed disability have not been supported by a later diagnosis of a medical professional. See Jandreau. Thus, the veteran's lay assertions that current back diagnoses are related to service are not competent or sufficient. To the extent that the veteran is competent to state that he received post-service medical treatment, the veteran indicated that he would submit supporting medical records. He has failed to do so. He was told that VA would not pay additional fees for these records, yet he did not obtain them. He has told VA that he was in fact treated and paid for the treatment he received. He has not submitted any supporting evidence of this treatment. He was provided ample opportunity to cooperate in this regard. In fact, the most recent effort to contact the veteran by telephone resulted in notification that the veteran was no longer able to be reached at the number furnished to VA. The record contradicts the veteran's statements regarding VA treatment. Numerous attempts were made to locate the purported records, but all efforts were futile. The Board finds that due to negative responses to VA's repeated inquiries regarding these records from the veteran and from VA, the veteran is not credible in his report of the nature of any post-service medical treatment. There is no competent medical evidence of any link between his current diagnosis and service. The veteran is not competent to make this causal link or to state the etiology of his currently diagnosed back disability. The competent medical evidence shows that currently diagnosed back disability is not related to service. The VA examiner stated that based on the history, physical examination, and diagnostic tests, it was not at least as likely as not that the current low back condition was service connected. As noted, although the veteran had inservice treatment for back complaints and reported recurrent back pain on his separation examination, the physical examination revealed no abnormalities when he was discharged from service which was essentially indicative that inservice back problems had resolved. The VA examiner explained that after the veteran's discharge from service, he did not see any physician on an ongoing basis. Although the veteran has made statements to the contrary, the Board, as noted, finds that he is not credible in that regard. Current testing revealed no significant nerve root compromise despite the veteran's report of having a pinched nerve. The Board attaches significant probative value to the VA opinion, as it is well reasoned, detailed, consistent with other evidence of record, and included review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). The VA opinion is considered the most probative evidence of record. Thus, this probative evidence establishes that current back disability is not related to service. Accordingly, service connection is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the veteran's claim, and it must be denied. ORDER Service connection for a back disability, diagnosed as mechanical low back pain with a small posterior annular tear at L5-S1 and mild bilateral facet disease, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs