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June 8, 2011

Single Judge Application, Cook v. Brown, 4 Vet.App., “Unreasonable Time Lapse”

Filed under: Uncategorized — Tags: , , — veteranclaims @ 1:55 pm

Excerpt from decision below:
“The appellant argues that under Cook v. Brown, a period of five years is not an unreasonable lapse in time between the manifestation of a disease and a later diagnosis. 4 Vet.App. 231, 238 (1993). The appellant’s argument is unavailing. First, the Court in Cook analyzed the phrase “unreasonable time lapse” found in 38 C.F.R. § 3.307(c) regarding the post-service diagnosis of a chronic disease as defined by 38 C.F.R. § 3.309. A low back disability is not a chronic disease for purposes of § 3.307. 38 C.F.R. § 3.309. Therefore § 3.307(c) does not apply to the appellant’s claim. Second, even if Cook applied, it is distinguished from the present case. In Cook, the Court stated:
An important factor in considering the “unreasonableness” of the time
lapse is the strength of the evidence establishing an identity between the disease
manifestations and the chronic disease as subsequently diagnosed; a strong evidentiary link tends to ensure that the diagnosed disease is not attributable to “intercurrent causes.”
4 Vet.App. at 238 (citing 38 C.F.R. § 3.303(b)). The Court went on to conclude that since Mr. Cook received continuous treatment from the date of his first manifestations of his disease to the eventual diagnosis five years later, there was a strong evidentiary link to connect the manifestations to the diagnosis. Id.
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 09-2197
VICTOR J. MOLINA, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, Victor J. Molina, appeals through counsel a
June 4,
2009, Board of Veterans’ Appeals (Board) decision that denied his claim
for service connection for
a low back disability. Both parties have filed briefs. The Court has
jurisdiction pursuant to
38 U.S.C. §§ 7252(a) and 7266(a) to review the Board’s decision. A
single judge may conduct this
review because the outcome in this case is controlled by the Court’s
precedents and “is not
reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
For the following
reasons, the Court will affirm the Board’s decision.

I. BACKGROUND
Mr. Molina served in the U.S. Air Force from September 1966 to August 1968.
Record (R.)
at 338. He reports injuring his low back in 1967 while unloading a large
aircraft part. R. at 272.
He also states that he received treatment from the hospital at Langley Air
Force Base, but the record
does not include service medical records (SMRs) showing this treatment. R.
at 14. The SMRs
indicate that, in October and November 1967, Mr. Molina received treatment
for complaints of low
back pain and testicle pain, which was diagnosed as epididymitis. R. at
417-22. In July 1968, Mr.
Molina completed a medical history report and checked the “Yes” box for ”
recurrent back pain.”

R. at 427. On the same form, the examining physician noted “Back pain
refers to episode of
epididymitis and prostatitis Oct-Nov 67, treated with antibiotics with
good results. Denies all other
significant medical and surgical history.” R. at 428.
Over five years after discharge, in 1974, Mr. Molina received treatment
for back pain at a VA
medical facility. R. at 41-45. He complained of “severe back pain” and
received x-rays of his
lumbosacral spine, which revealed Schmorl’s nodes and minimal degenerative
change but were
otherwise normal.1
R. at 45, 42.
ADecember2000physicaltherapytreatment notestates”[Historyof] chronicLBP[
lowback
pain] since age 19 – he was in military.” R. at 291. A June 2001 medical
report states that Mr.
Molina presented with “a history of back problems for thirty years. The
patient said it started
insidiously when he was in the military service, and has basically been on
and off since then. He
never really reported it because it was quite mild at that time.” R. at
287. The physician diagnosed
him with “[c]hronic low back pain secondary to probable degenerative joint
disease, as well as
degenerative disc disease. According to this patient’s clinical history,
it is also a possibility that this
patient has a degree of spinal cord stenosis.” R. at 289. The physician
also stated: “This patient
presents with multiple symptoms that suggest multiple etiologies for his
back pain. . . . I do not
believe it will be helpful to re-refer him back to physical therapy until
we get a better idea of what
is going on with his back through the MRI [(magnetic resonance imaging)].”
R. at 289-90. The MRI
later showed “a herniated nucleus pulposus at L5-S1 with effacement of the
S1 nerve root on the
right side,” although the physician did not provide an etiology for this
condition. R. at 282-83.
Mr. Molina sought service connection for a low back disability in 2002. R.
at 328-37. A VA
regional office (RO) denied the claim due to a lack of evidence of a back
injury in service. R. at 276.
He appealed to the Board. R. at 226.
In the June 2009 decision here on appeal, the Board found that Mr.
Molina’s low back
disability did not manifest until many years after service and is not
related to any disease or injury
incurred during service.
A Schmorl node is “an irregular or hemispherical bone defect in the upper
or lower margin of the body of the
vertebra.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1300 (31st ed. 2007).
1
2

On appeal, Mr. Molina argues that the Board made no express determination
regarding the
credibility of his lay statements that he injured his back in service.
Next, he argues that the Board’s
reliance on Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000), was misplaced.
Then, he argues that
a private medical record shows a relationship between his current low back
disability and his
reported in-service injury. Lastly, he argues that reversal, not remand,
is the appropriate remedy.
II. ANALYSIS
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); see also Heuer v. Brown, 7 Vet.App. 379, 384 (1995). A finding of
service connection, or
no service connection, is a finding of fact reviewed under the “clearly
erroneous” standard in
38 U.S.C. § 7261(a)(4). See Swann v. Brown, 5 Vet.App. 229, 232 (1993). ”
A factual finding ‘is
“clearly erroneous” when although there is evidence to support it, the
reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has
been committed.'” Hersey
v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. United
States Gypsum Co.,
333 U.S. 364, 395 (1948)). The Court maynot substitute its judgment for
the factual determinations
of the Board on issues of material fact merely because the Court would
have decided those issues
differently in the first instance. See id.
Before deciding a claim, the Board is required to consider all relevant
evidence of record and
to consider and discuss in its decision all “potentially applicable”
provisions of law and regulation.
Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104(
a); Weaver v. Principi,
14 Vet.App. 301, 302 (2001) (per curiam order). In addition, the Board is
required to provide a
written statement of the reasons or bases for its findings and conclusions,
adequate to enable an
appellant to understand the precise basis for the Board’s decision as well
as to facilitate review in this
Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995
); Gilbert v. Derwinski,
1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board
must analyze the
3

credibilityand probative value of the evidence, account for the evidence
that it finds to be persuasive
or unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the
claimant. Caluza, 7 Vet.App. at 506; Gilbert, 1 Vet.App. at 57.
The appellant first argues that the Board failed to make an express
determination regarding
the credibility of his lay statements that he injured his back in service.
Appellant’s Brief (Br.) at 7-8
(citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006)). The Board
is specifically charged
with weighing lay evidence against the other evidence of record in making
its determination
regarding service connection. See Buchanan, 451 F.3d at 1334-37. Regarding
this weighing of
evidence, the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) has instructed: “Nor do
we hold that the Board cannot weigh the absence of contemporaneous medical
evidence against the
layevidence of record. . . . [H]owever, the Board cannot determine that
layevidence lacks credibility
merely because it is unaccompanied bycontemporaneous medical evidence.” Id.
at 1337 (emphasis
added); see Barr v. Nicholson, 21 Vet.App. 303, 310 (2007) (“[T]he Board
may not reject as not
credible any uncorroborated statements merely because the contemporaneous
medical evidence is
silent as to complaints or treatment for the relevant condition or
symptoms.”); see also Gardin v. Shinseki, 613 F.3d 1374, 1379-80 (Fed. Cir. 2010) (approving the Board’s analysis under Buchanan where it found that the veteran’s lay statements were not credible because they were contradicted by the contemporaneous medical evidence).
In this case, the Board did not rely merely on an absence of contemporaneous medical evidence or require such evidence as a prerequisite to determining the credibility of the lay evidence. See Gardin, supra. In fact, the Board noted the contemporaneous medical evidence, including the October and November 1967 SMRs and the July 1968 separation examination, and discussed how it weighed against the appellant’s lay evidence. R. at 7. A review of the
record reveals that these
documents are not “silent as to complaints or treatment” for back pain,
but instead show that the
appellant experienced back pain and that back pain was caused by
epididymitis and prostatitis, not
a lifting incident. See Barr, 21 Vet.App. at 310; R. at 417-22, 428. The
Board stated that these
contemporaneous medical records were “more probative” regarding the
element of an in-service
injury. R. at 7; see Davidson, supra. While the Board did not
expresslystate whether the appellant’s
laystatements were “credible,” it is clear that the Board considered the
statements and weighed them
4

against the contemporaneous medical evidence and found the latter to be
more probative. The
Board’s analysis was not in error. See Owens v. Brown, 7 Vet.App. 429, 433 (
1995) (holding that
the Board is responsible for assessing the credibility and weight of
evidence and that the Court may
overturn the Board’s decision only if it is clearly erroneous); see also
McClain v. Nicholson,
21 Vet.App. 319, 321 (2007) (stating that although clarity is preferred,
it “cannot be demanded in
every instance or finality would forever be delayed pending perfection in
draftsmanship”).
Next, the appellant argues that the Board’s reliance on Maxson was
misplaced. In Maxson,
the Federal Circuit stated that “evidence of a prolonged period without
medical complaint can be
considered, along with other factors concerning the veteran’s health and
medical treatment during
and after militaryservice.” 230 F.3d at 1333. Here, the Board concluded
that entitlement to service
connection for a low back disorder was not warranted in part because of
the five-year gap between
the appellant’s separation and the 1974 treatment for back pain. R. at 7.
The appellant argues that
under Cook v. Brown, a period of five years is not an unreasonable lapse
in time between the
manifestation of a disease and a later diagnosis. 4 Vet.App. 231, 238 (
1993). The appellant’s
argument is unavailing. First, the Court in Cook analyzed the phrase ”
unreasonable time lapse”
found in 38 C.F.R. § 3.307(c) regarding the post-service diagnosis of a
chronic disease as defined
by 38 C.F.R. § 3.309. A low back disability is not a chronic disease for
purposes of § 3.307.
38 C.F.R. § 3.309. Therefore § 3.307(c) does not apply to the
appellant’s claim. Second, even if
Cook applied, it is distinguished from the present case. In Cook, the
Court stated:
An important factor in considering the “unreasonableness” of the time
lapse is the
strength of the evidence establishing an identity between the disease
manifestations
and the chronic disease as subsequently diagnosed; a strong evidentiary
link tends to
ensure that the diagnosed disease is not attributable to “intercurrent
causes.”
4 Vet.App. at 238 (citing 38 C.F.R. § 3.303(b)). The Court went on to
conclude that since Mr. Cook
received continuous treatment from the date of his first manifestations of
his disease to the eventual
diagnosis five years later, there was a strong evidentiary link to connect
the manifestations to the
diagnosis. Id. Here, in contrast, the appellant has not shown that he
received continuous treatment
for the low back pain he reported during service during the five-year gap,
nor does the 1974
treatment record reflect continuous symptoms since service. R. at 41-45;
see also R. at 425
(1968 separation examination showing normal spine and musculoskeletal
system). Finally, the
5

Board considered the five-year gap in treatment in conjunction with the
other evidence of record in
determining whether an in-service injury occurred and whether his current
back disability is related
to service. There is no indication in the record that the Board placed
anyundue weight on this single
piece of evidence or improperly based its decision on this fact. Therefore,
the Court concludes that
the Board’s reliance on Maxson was not in error.
The appellant further argues that a private medical record shows a
relationship between his
current low back disorder and his reported in-service injury. He states
that a “2000 medical report
from Kaiser Permanente is competent medical evidence that a current back
disorder began during
service.” Appellant’s Br. at 9 (citing R. at 287-91).2
However, neither the December 2000 nor June
2001 medical records referenced by the appellant support such a conclusion.
As noted above, the
December 2000 record includes the appellant’s reported history of chronic
low back pain “since age
19 – he was in the military.” R. at 291. Likewise, the June 2001 record
includes the appellant’s
reported “history of back problems for thirty years . . . [that] started
insidiously when he was in the
military service.” R. at 287. The Secretary correctly notes that there is
nothing in either medical report that indicates that the examiner attributed the appellant’s current low back disability to any event in service. The Court notes that “a bare transcription of a lay history is not transformed into
‘competent medical evidence’ merely because the transcriber happens to be
a medical professional.” LeShore v. Brown, 8 Vet.App. 406, 409 (1995).3
Indeed, the June 2001 record did not relate the
appellant’s low back pain with in-service trauma, but with “probable
degenerative joint disease, as
well as degenerative disc disease . . . [and] a possibility [of] . . . a
degree of spinal cord stenosis.”
R. at 289. In addition, the physician stated that he still needed to “get
a better idea of what is going
on with his back,” indicating a degree of uncertainty with the diagnoses
and etiology of the
appellant’s low back pain. R. at 289. Therefore, contrary to the
appellant’s assertions, the Court
The pages cited are actually medical records from two separate treatments.
Pages 287-90 reflect a June 2001
low back consultation. Page 291 reflects a December 2000 physical therapy
record. While the appellant refers to the
“2000 medical report” multiple times, the Court will also consider the
June 2001 medical report as part of the appellant’s
argument.
In a hearing before a Board member, the appellant was asked whether any
doctor ever told him that his back
disorder is related to service. He responded, “No, just other than what I
told them because they asked me, how did you
injure your back and then I tell them and that’s about it.” R. at 24-25.
3
2
6

concludes that the medical reports from December 2000 and June 2001 do
not demonstrate a nexus
between the claimed in-service injury and the current low back disability.
Finally, the appellant argues for reversal of the Board’s decision because ”
the only
permissible viewoftheevidenceinthis caseis a summaryaward of
serviceconnection.” Appellant’s
Br. at 10-11. Reversal is the appropriate remedy only in cases in which
the only permissible view
of the evidence is contrary to the Board’s decision. See Gutierrez v.
Principi, 19 Vet.App. 1, 10
(2004); Johnson v. Brown, 9 Vet.App. 7, 10 (1996). In this case, the
appellant has not established
any error in the Board’s decision and there are, thus, no grounds for the
Court to reverse the
Board’s decision.
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record,
the Board’s June 4, 2009, decision denying entitlement to service
connection is AFFIRMED.
DATED: May 26, 2011
Copies to:
Robert W. Legg, Esq.
General Counsel (027)
7

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