Citation Nr: 1749109	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  08-25 350	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for a low back disorder.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Jacquelynn M. Jordan, Associate Counsel


INTRODUCTION

The Veteran served in the U.S. Army from September 1969 to September 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which declined to reopen the Veteran's claim for service connection for residuals, lumbosacral strain.

During the pendency of this appeal, the Veteran submitted an October 2007 written statement expressing disagreement with the RO's initial April 1984 denial of his low back claim.  Specifically, the Veteran asserted that the April 1984 adjudicators had failed to sufficiently account for service treatment records documenting the occurrence of a lower back problem that had resulted in permanent disability. Additionally, the Veteran expressly alleged that the prior RO decision was clearly and unmistakably erroneous (CUE).

The Board considered the Veteran's October 2007 statement to be tantamount to a claim of CUE with respect to the prior rating decision.  38 C F R § 3.105, see also
Fugo v Brown 6 Vet App 40, 44 (1993) (claim of CUE must be pled with specificity).  Accordingly, in May 2012, the Board determined that the Veteran's assertion of CUE, in the April 1984 rating decision was inextricably intertwined with his new and material claim.  For that reason, the Board deferred consideration of the claim until the RO developed and adjudicated, in the first instance, the Veteran's CUE challenge and remanded the claim for additional development.  In June 2014, the Board determined that despite the Board's prior referral for adjudication by way of a rating decision, the Appeals Management Center (AMC) merely addressed the claim in a July 2012 SSOC.  Because the Board determined that the Veteran's claim had not been validly adjudicated by the RO, the Board determined it did not have jurisdiction over the claim.  The Board referred the CUE claim to the Agency of Jurisdiction (AOJ) for appropriate action.  See Godfrey v Brown, 7 Vet App 398 (1995) (the Board does not have jurisdiction of issues not yet adjudicated by the RO), see also Bernard v Brown, 4 Vet App 384 (1993).  The referral of that issue necessitated a remand of the Veteran's claim of service connection for a low back condition, as the appellate issue is inextricably intertwined with the matter of CUE in the April 1984 rating decision that denied entitlement to service connection for a low back disability a rating is inextricably intertwined.  A June 2017 Supplemental Statement of the Case determined new and material evidence had been received to reopen the claim of denial of service connection for a low back disorder.  However, the issue of service connection for low back disorder was denied.  The appeal has been returned to the Board for adjudication.


FINDINGS OF FACT

The more probative evidence fails to demonstrate that the Veteran's low back disability is related to his active duty service or caused by back pain during service.


CONCLUSION OF LAW

The criteria for the establishment of service connection for a low back disability are not met.  38 U.S.C.A. §§ 1101, 1110 5107(b) (West 2002); 38 C.F.R. §§ 3.303 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist, and the Veteran's representative has not raised any procedural arguments regarding the notice or assistance provided in this case.  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Service Connection

The Veteran seeks service connection for a low back disability.  The more probative evidence fails to link the Veteran's low back disability to his active duty military service and therefore the claim will be denied.  38 C.F.R. §§ 3.102, 3.303.

Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131.  With chronic disease shown as such in service 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.  However, the U.S. Court of Appeals for the Federal Circuit held that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309 (a).  Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases.").  See also 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. 
§§ 3.307, 3.309.  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).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  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).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  
In weighing lay evidence, the Board must render a finding with regard to both competency and credibility.  See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006).  Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

In addition, as noted above, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) 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 addition, the U.S. Court of Appeals for Veterans Claims (Court) held that the credibility of lay evidence can be affected and even impeached by factors such as inconsistent statements, internal inconsistency of statements, and inconsistency with other evidence of record.  See Macarubbo v. Gober, 10 Vet. App. 388 (1997).

Low Back

The Veteran contends that his low back disability is the result of his active duty service.  Specifically, he states that he injured his back while unloading ammunition from a 2.5 ton truck.  Service treatments show the Veteran reported he injured his back in 1970.  However, his back x-ray was normal.  

As noted in the June 2017 VA examination, the Veteran is diagnosed with lumbosacral strain.  Therefore, the Veteran has a current disability, as required by 38 C.F.R. § 3.303.

As mentioned above, the Veteran's service treatment records from 1970 show that the Veteran suffered an injury to his lower back during service.  However, at his separation examination in 1971, the Veteran checked "no" to having "any back trouble of any kind".  The Veteran submitted records from his private physician.  The statements from the Veteran's chiropractor indicate that the Veteran has injured his back a number of times since military service and has had back problems related to incidents that have occurred since his military service.  Additionally, the 2015 letter from the Veteran's doctor, states he has been under chiropractic care; however, the letter does not provide an opinion regarding whether the back pain is related to the Veteran's military service.

The Veteran was afforded a VA examination in June 2017.  The examiner determined that it is less likely than not (less than 50 percent probability) that the Veteran's low back injury was incurred in or caused by the claimed in-service injury, event, or illness.  The examiner acknowledged that the Veteran's records showed the diagnosis of lower back pain, back injury and treatment while on active duty in 1970.  However, the examiner opined that there has been no documentation of continuity of care for the last 47 years; therefore, the current condition is not related to service.

Assuming that the Veteran did suffer from back pain post-service, the Board finds that the medical evidence regarding the etiology of his current disability is more probative than the Veteran's lay statements.  The June 2017 VA examination reflects review of the Veteran's treatment records and provides reasoned medical opinions regarding likely etiology of the Veteran's low back disability.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  This opinion is probative because it is factually informed, medically based, and responsive to the inquiry.  The examiner also provided a full and complete rationale for the opinion.  

As held by the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches".  Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993).  The credibility and weight to be attached to these opinions are within the province of the Board.  Id.  Thus, in this case, the Board finds that the VA examiners' opinion is entitled to the most probative weight regarding the etiology of the Veteran's low back disability.  

Although the Veteran can attest to having pain in his low back, as this is within the common knowledge of lay persons, the factual picture presented here is complex.  Whether the Veteran's current low back disability can be linked to any current diagnosis or the prior resolved back strains in service cannot be determined by mere observation alone.  The Board finds that determining the exact cause of the Veteran's low back disability is not within the realm of knowledge of a non-expert given the above facts.  As the evidence does not show that the Veteran has expertise in medical matters, the Board concludes that both the Veteran's nexus determinations in this regard are not probative of whether the Veteran has a current low back disability related to his active duty service, any incident therein, or secondary to any service-connected disability.  Thus, the Veteran's statements are afforded less probative value with respect to the medical question of whether he has a current low back disability that is related to his active duty service or to any service-connected disability.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue.  Neither the lay evidence nor the medical evidence separately, or in combination, rises to the level of equipoise regarding the Veteran's claim for service connection for a cervical spine disability.  See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits ...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA ... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). 

Accordingly, given the record before it, the Board finds that the evidence against the claim for a low back disability is more probative than the evidence in favor of the claim.  Therefore, the Veteran's claim for service connection for a low back disability must be denied and the doctrine of reasonable doubt is not for application.  See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).



	(CONTINUED ON NEXT PAGE)
ORDER

Service connection for a low back disorder is denied.



____________________________________________
Cynthia M. Bruce
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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