Citation Nr: 0711373 Decision Date: 04/17/07 Archive Date: 05/01/07 DOCKET NO. 03-29 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for herniated nucleus pulposus. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Associate Counsel INTRODUCTION The veteran served on active duty from May 1969 to May 1971. This matter came to the Board of Veterans' Appeals (Board) from a November 2001 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The veteran testified at a hearing before the RO in May 2003, and an informal conference was held in January 2005. This matter was remanded in June 2006 for further development. A review of the record shows that the RO has complied with all remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT Lumbar spine disability, to include herniated nucleus pulposus, was not manifested during the veteran's active duty service or for many years thereafter, nor is any current lumbar spine disability otherwise related to such service. CONCLUSION OF LAW Lumbar spine disability, to include herniated nucleus pulposus, was not incurred in or aggravated by the veteran's active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which has been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Under the VCAA, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 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 United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, VA satisfied its duties to the veteran in a VCAA letter issued in February 2001. The letter predated the November 2001 rating decision. See id. Subsequently, the veteran was issued VCAA letters in January 2004 and June 2006. Collectively, the VCAA letters notified the veteran of what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the need for the claimant to submit any evidence in his possession that pertains to the claim. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004). The February 2001, January 2004, and June 2006 letters have clearly advised the veteran of the evidence necessary to substantiate his claim. In March 2006, the veteran was provided with notice of the types of evidence necessary to establish a disability rating and the type of evidence necessary to establish an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Despite initial inadequate notice provided to the veteran, the Board finds no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). In any event, since the Board concludes below that the preponderance of the evidence is against entitlement to service connection, any questions as to the appropriate disability rating and effective date to be assigned are rendered moot. The Board also finds that VA has complied with all assistance provisions of VCAA. The evidence of record contains the veteran's service medical records and post-service private medical records. The Board acknowledges that the veteran's claims folder previously contained the records of another veteran with a similar name, however, such records have since been removed. Also, despite the veteran's claims otherwise, there is no indication that any of his service medical records are missing. There is no indication of relevant, outstanding records which would support the veteran's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). As will be discussed in more detail below, the Board has determined that an examination or opinion is not necessary with regard to the claim of service connection for a back disability. For all the foregoing reasons, the Board concludes that VA's duties to the veteran have been fulfilled with respect to the issue on appeal. Criteria & Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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 veteran essentially claims that he sustained a back injury and experienced back pain during service. He claims that for eight to twelve weeks during his advanced training for field artillery, he performed a significant amount of heavy lifting, such as lifting shells weighing 50 to 60 pounds and putting them into a Howitzer. He claims he went to sick call one day because of back pain, but decided not to go again because extra duty would then be required. Subsequently, he was stationed in Germany where he performed more heavy lifting loading onto trucks. He claims he went to sick call twice for his back, but wound up on guard duty. He claims that he used a heating pad, and took aspirin and Tylenol for his back. A Report of Medical Examination performed for induction purposes in February 1969 reflects that his 'spine, other musculoskeletal' was clinically evaluated as normal. On a February 1969 Report of Medical History completed by the veteran he checked the 'No' box with regard to 'back trouble of any kind.' Service medical records do not reflect any complaints or treatment related to the back or spine. On a Report of Medical History completed by the veteran for separation purposes, he checked the 'No' box with regard to 'recurrent back pain.' A March 1971 Report of Medical Examination reflects that his 'spine, other musculoskeletal,' and 'lower extremities' were clinically evaluated as normal. Private medical records reflect that in 1989, the veteran injured his back when he was moving boxes and cabinets at work. The first MRI showed a huge central disc bulge at L3- L4 which responded to conservative therapy. A year later, he was bending over to unplug a computer when a fan fell on his back. He wore a brace for two or three weeks and went back to work again. He developed low back pain with radiculopathy. An MRI demonstrated a congenital narrowing of the lumbar spine as well as a far left lateral disc protrusion at L4-L5, as well as a small paracentral protrusion at L3-L4, and a small protrusion at L2-L3. He underwent surgery in April 1994 which involved removal of the disc material at L4-L5 and a bilateral bone fusion. He returned to work from 1994 to 1996. In April 1996, he re- injured his lower back descending five flights of stairs rapidly. He noticed back pain as well as pain going down both legs. Since such injury, the veteran has experienced a slowly progressive deterioration in his ability to sit or stand, walk up or down stairs. There have been several exacerbations of his condition. Multiple lay statements have been submitted by the veteran's family members dated in 1999 and 2000 which state that the veteran complained of back pain during service, and mentioned back pain in letters and during telephone conversations. In May 2006, a private physician, Craig N. Bash, M.D., prepared an opinion regarding etiology of the veteran's spine disability. Dr. Bash stated the following: It is my opinion that [the veteran's] spine injury in service lead directly to his degenerative spine problems which required corrective surgery, and that his current spine problems are due to a combination of his service time injury along with the residuals of his surgical correction attempts. Dr. Bash noted that he had reviewed medical records; imaging reports; other medical opinions; lay opinions; and, medical literature review. The examiner specifically referenced the veteran's May 2003 hearing testimony, and also lay statements which noted that his "spine was problematic during and after service." In the discussion portion of the opinion, Dr. Bash stated the following: [The veteran] had a spine injury during service and it is well known that injuries to the spine early in life often lead to advanced degenerative changes later in life due to the resultant chronic ligament laxity and spine instability as one author states... It is my opinion that his spine injury in service lead directly to his degenerative spine problems which required corrective surgery, and that his current spine problems are due to a combination of his service time injury along with the residuals of his surgical correction attempts for the following reasons: (1) His spine problems developed in service. (2) The literature supports a connection between spine injuries and the development of early degenerative spine disease. (3) He has imaging documented [sic], early spine degenerative changes, which required spine surgery as documented above by Dr. Ninoff. (4) I have reviewed his films and it is clear to me that his spine degenerative changes are very advanced with osteophytes and canal stenosis. (5) His spine degenerative disease is both advanced and early which means that he [sic] degenerative changes are out of proportion to his age therefore he likely had an antecedent injury. It is my opinion that his antecedent injury occurred during service time. (6) He did not get relief from his tow [sic] previous spine surgeries. (7) His record does not contain a more likely etiology for his current advanced degenerative spine disease. A July 2006 lay statement from E.L.B., a fellow soldier, states that he was stationed with the veteran during Artillery Gun training. He claims that he went to see the veteran and when he got there the veteran was "lying on his bunk complaining of back pain." The veteran has claimed that he sustained a low back injury during service and went to sick call on at least three occasions, however, the service medical records on file do not reflect any such complaints or treatment. The veteran has claimed that he continually experienced back pain during service, however, such statement is contradicted by his March 1971 notation of no recurrent back pain on his Report of Medical History, and the March 1971 separation examiner's findings that his spine and lower extremities were clinically evaluated as normal. Moreover, the post-service objective evidence of record is devoid of any complaints of or treatment for any back related disability until he incurred a work-related injury in 1989. Thus, the veteran did not initially seek medical care related to his claimed back disability until subsequent to his 1989 work injury, and approximately 18 years after separation from service. It is also relevant that the veteran's medical records from the 1990's do not contain any reference to any claimed in-service injury or aggravation thereof. The objective medical evidence of record does not contain any contentions related to an in-service injury until after he filed his January 2000 claim for compensation, and any such notations are unsupported by the objective evidence of record. While acknowledging the May 2006 opinion of Dr. Bash, it is clear that such opinion of an etiological relationship to service was based solely on the veteran's self-reported history which is not supported by the objective evidence of record. Dr. Bash repeatedly references a "spine injury" sustained in service, however, it is clear that such characterization is based on the veteran's May 2003 testimony and lay statements of record, as specifically referenced by the physician in the written opinion. The veteran contends that Dr. Bash reviewed his service medical records, however, if so, it is unclear what "spine injury" in service Dr. Bash is referring to, as the veteran's service medical records are completely devoid of any spine injury, or objective findings related to the spine, other than it being clinically evaluated as normal. Dr. Bash also opined that the veteran likely had an antecedent injury, and concluded that such antecedent injury occurred during service. Such statement, however, is completely unsupported by the objective evidence of record. It is apparent that the physician's opinion was based on history supplied by the veteran and is not substantiated by the veteran's service medical records, which have a high probative value. The Court has determined that history which the veteran provides does not transform that history into medical evidence. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Moreover, the veteran's self-reported history was provided decades after the claimed injury and at a time when he had a claim for VA benefits with the potential for pecuniary gain. The clinical records do not support the veteran's current allegations or the physician's opinion. The Board is not bound to accept medical opinions that are based on history supplied by the veteran, where that history is unsupported by the medical evidence or based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458, 460- 61 (1993). It is noted that the RO did not provide a VA examiner to review the claims file for a nexus opinion for this service connection claim and per recent precedent, such is not required in order to make a final adjudication. McLendon v. Nicholson, 20 Vet. App. 79 (2006), states, that in disability compensation (service connection) claims, VA must provide a medical examination [for a nexus opinion, as applicable] when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case. Initially, the evidence does not establish that the veteran suffered "an event, injury or disease in service," with regard to his back, so it is not necessary to obtain a VA medical opinion with regard to etiology. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In other words, absent such evidence, the Board finds that it is unnecessary to require the veteran to report for a VA medical examination or to ask a medical expert to review the record because any examination report or medical opinion could not provide competent evidence of the incurrence of a back injury in service. Moreover, given the absence of any competent evidence of the claimed post-service disability until 18 years after service, any current opinion provided at this point would be no more than speculative. See 38 C.F.R. § 3.102 (2006) (a finding of service connection may not be based on a resort to speculation or even remote possibility). Although the veteran asserts incidents in service that he contends caused his current back disability, the Board finds that the preponderance of the evidence argues against such contention. The service medical records show that the veteran himself did not believe that he had recurrent low back pain as he expressly reported that fact upon separation examination. A trained military medical examiner found the veteran's spine to be clinically normal at that time, demonstrating that in the examiner's medical opinion there was no abnormality at that time. Service medical records do not otherwise document the claimed inservice injury referenced by Dr. Bash in his opinion. In sum, the veteran's current contentions and much of the factual predicate relied upon by Dr. Bash is totally inconsistent with the veteran's statements on separation examination and the medical findings at that time. While the veteran's statements and testimony have been considered, as have the lay statements from his family members and fellow soldier, such statements alone are insufficient to support a grant of service connection. It is undisputed that a lay person is competent to offer evidence as to facts within his or her personal knowledge, such as the occurrence of an in-service injury, or symptoms, but such statements of back complaints during service and prior to 1989 are unsupported by the objective evidence of record. Moreover, laypersons are not competent to provide an opinion requiring medical knowledge, such as a question of medical causation or etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Again, service medical records simply do not document any spine injury. These records are quite detailed as to other physical complaints and clinical findings, but nothing in reference to the back. Further, post-service medical records only reflect treatment for a spine injury subsequent to a 1989 civilian accident. The veteran's statements and testimony to the effect that he had continuous back problems during and prior to 1989 are simply inconsistent with the evidence contemporaneous to his service. As such, the Board finds that the veteran's current statements and testimony, as well as the opinion by Dr. Bash which relies heavily on the history furnished by the veteran, are of diminished probative value. The Board finds that the veteran's statements regarding the state of his health at the time of discharge examination and the clinical findings by medical personnel at that time are entitled to more weight. In short, after reviewing the overall record the Board finds that the preponderance of the evidence is against entitlement to service connection for herniated nucleus pulposus. It follows that there is not such an approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. 38 U.S.C.A. § 5107(b). ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs