Citation Nr: 0809888 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 96-33 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for depression. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Seales, Associate Counsel INTRODUCTION The veteran served on active duty from December 1979 to December 1983. This appeal arises from July 1996 and March 2000 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Board notes that the veteran's claims folder was transferred from the North Little Rock RO to the Montgomery, Alabama RO in November 2002, as the veteran had relocated. The Board remanded the veteran's case for evidentiary and procedural development in April 1998, February 2003, May 2004, and December 2005. Such development having been accomplished, the appeal has been returned to the Board for further appellate review. FINDINGS OF FACT 1. The veteran's lumbar spine disability did not manifest during service and is not related to a disease or injury in service. 2. The veteran does not have a current disability involving depression. CONCLUSION OF LAW 1. A lumbar spine disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). 2. Depression was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). The record reflects that the VA has made reasonable efforts to notify the veteran of the information and evidence needed to substantiate his claim. The veteran was provided a VCAA notice letter in May 2004; as well as a copy of the rating decision, a statement of the case, and supplemental statements of the case. These documents, collectively, provide notice of the law and governing regulations, as well as the reasons for the determination made regarding his claim and identified the cumulative evidence already having been previously provided to VA or obtained by VA on his behalf. The VCAA letter also informed the veteran of what evidence was needed to establish his claim and what evidence VA would obtain. Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record discloses that VA has met its duty to assist the veteran in obtaining any relevant evidence available to substantiate his claim. With the exception of the veteran's service medical records, all available records identified have been obtained and associated with the claims folder. In September 1988 the National Personnel Records Center furnished all available service medical records pertaining to the veteran and noted that DA Form 2496 indicated the veteran last had possession of his service medical records and failed to return them. The Board recognizes its heightened obligations in cases where service medical records are unavailable, and in this decision will rely on the uncontroverted facts as reported by the veteran. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), aff'd 455 F.3d 1346 (Fed. Cir. 2006); Russo v. Brown, 9 Vet. App. 46, 51 (1996). The veteran underwent a VA examination in December 1998. The veteran was not afforded a VA examination in connection with his claim for depression; however, as there is no evidence of a current disability, the Board finds that such an examination is not necessary. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The veteran testified before the undersigned Veterans Law Judge in January 2008. VA has satisfied both its duty to notify and assist the veteran in this case and adjudication of this appeal at this juncture poses no risk of prejudice to the veteran. Service Connection To establish service connection, three elements must be satisfied. There must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). See also Hickson v. West, 12 Vet. App. 247, 253 (1999). 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2007). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). Lumbar spine disability The veteran contends that his military occupational specialty required heavy lifting on a regular basis, which caused several overuse injuries in his low back. He specifically recalls injuring his back while moving heavy spools of cable in 1980 or 1981. He attests to seeking out medical attention whenever he experienced back pain and received medication, heat treatments, and bed rest. The veteran's November 1979 enlistment examination reflects no complaints of recurrent back pain, and no spine disorders were noted on examination. The rest of the veteran's service medical records are not available. November 1992 VA outpatient treatment records reflect the veteran's earliest complaints of low back pain. The veteran complained of a sudden onset of sharp pain in the left side of his lower back, as well as left hip and knee pain. He stated that he lifted furniture two weeks before he sought medical treatment; however, he denied any other falls or trauma. The veteran also denied a previous history of low back pain. His physician diagnosed lower back muscular pain/strain, and December 1992 x-rays revealed no evidence of fracture in the lumbar spine. In June 1995, the veteran reported a two day history of back pain, which he attributed to falling backwards against a tree stump. The veteran also stated that he lifted "a lot of 50- 100 lbs. bags" the preceding day. He reported left-sided back pain radiating into the left leg. On examination, spasms in the left paravertebral muscles were noted. The veteran's spinous processes were nontender, his gait was normal, and on straight leg raising pain was observed in the veteran's back rather than his legs. The diagnostic impression was back pain. An October 1996 discharge summary from the VA domiciliary program notes that the veteran had no physical activity limitations and was employed during treatment. In December 1998, the veteran underwent a VA compensation and pension examination, at which time he reported an onset of lower back pain in January 1981 after lifting cables while in service. He stated that he was never hospitalized for back pain during active service, but instead was placed on bed rest and given light duty profiles. The veteran stated that after separation from service, he attempted several different occupations; such as sanitation department worker, driver helper, and assembly line work. However, he reported being unable to perform the duties associated with these positions because they required lifting and standing. The veteran complained of constant generalized back pain. During the physical examination, range of motion testing revealed forward flexion limited to 75 degrees before the veteran complained of generalized lumbar spine pain. Side bending showed a range of 20 degrees, although the veteran complained of pain at the extremes of this range. The veteran showed very little range of motion on extension. Multiple films of the lumbar spine revealed degenerative discopathy at multiple levels of the lumbar spine. The examiner also diagnosed subligamentous central disc herniation at L3 and L4 without evidence of nerve root impingement or displacement. In this case, there is no dispute that the veteran is currently receiving medical treatment for a lumbar spine disorder. The question is whether the veteran's current disability is related to service in any way. The initial diagnosis of degenerative disc disease of the lumbar spine was not made until 1998, although the veteran initially sought treatment for low back pain in 1992. The veteran has attested to sustaining a lumbar spine injury while lifting heavy cable spools in service. In support of his claim he has submitted lay statements from family members and associates attesting to his complaints of back pain upon separation from service. However, the medical evidence of record indicates the veteran first sought treatment for a sudden onset of back pain in November 1992, after moving furniture. At that time the veteran denied a history of falls or trauma, as well as a previous history of low back pain. Further, the veteran sought treatment for back pain in June 1995 after lifting "a lot of 50-100 lbs." bags and had no physical activity limitations in October 1996. Thus, although the veteran's service medical records are not available, his statements attesting to a lumbar spine injury while in service are not credible in light of the statements made while receiving medical treatment in November 1992. The veteran denied a history of lumbar spine injury and pain, and moreover, attested to performing strenuous activities involving his back which led to the onset of his back pain. Further, the veteran continued to perform strenuous activities in June 1995, and his low back symptoms did not preclude physical activity in October 1996. Thus, the veteran's contentions that his lumbar spine disorder was chronic after separation from service are not credible. Further, the veteran's earliest complaints of back pain were made approximately nine years after discharge from active duty. Thus, despite competent medical evidence of a current disability, direct service connection, based upon incurrence during active service, is not warranted. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. The lengthy period without treatment and lack of documented evidence of continuity of symptomatology weighs against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, the Board finds that the veteran's contentions regarding the etiological relationship between his claimed low back disorder and active service are not probative. As previously explained, the veteran's reported history of a lumbar spine injury in service is not credible. Further, there is no competent medical opinion of record which relates the veteran's current disability to service. In this regard, the veteran was afforded a VA examination in December 1998. After reviewing the veteran's claim folder, the examiner determined that the veteran's low back disability did not have its onset in service or result from an injury in service. The examiner concluded that the veteran's lumbar spine disorder represented a slow and gradual degenerative process. In the examiner's opinion, the evidence of record did not establish a chronological series of events that could describe the course of a back disorder starting with an incident of injury or trauma. The Board notes that the veteran has submitted an August 1999 statement from Dr. A. Fann, who states that the veteran's back pain could have been caused by the duties he performed while in the service. Dr. Fann's medical opinion does not provide a meaningful explanation regarding nexus to service. Indeed, Dr. Fann's opinion statement only infers the possibility that the veteran's low back disorder may be related to service, without specifying grounds for such an opinion. Such tentative comments do not establish a nexus to service. Further, as a lay person, the veteran is not shown to have the necessary medical competence to diagnose a disability or offer probative opinions as to medical etiology. Thus, no connection to service is shown by the medical evidence of record. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Accordingly, service connection for low back disorder is denied. Depression The veteran seeks service connection for depression that he claims is related to the frustration and irritability he experienced after injuring his lumbar spine in service. No psychiatric disorders were observed during the veteran's November 1979 enlistment examination, and the veteran did not report a history of psychiatric symptoms. The rest of the veteran's service medical records are not available. A review of the claims file indicates the veteran has an extensive history of treatment for several different psychiatric disorders. In October 1999, the veteran sought treatment for subjective depressive symptoms, which he attributed to frustration and irritability regarding his chronic pain. During the examination, he described feelings of loneliness, guilt, low energy, poor concentration, and decreased sleep. The veteran also reported a history of crying spells, suicidal ideations, and auditory hallucinations. The VA psychiatrist performing the evaluation concluded the veteran's symptoms presented a mixed picture. While the veteran appeared to be experiencing some depressive symptoms, he also demonstrated behavior during the interview which was not characteristic of a typical patient with a depressive disorder. The examiner also noted that the veteran demonstrated psychotic features. The examining physician was unable to determine the effect that the veteran's history of substance abuse presented in contributing to his mixed symptomatology. The psychiatrist explained that because of the variety of symptoms demonstrated by the veteran, several different diagnoses could not be excluded; including paranoid schizophrenia, schizoaffective disorder, somatoform disorder, major depression, generalized anxiety disorder, and antisocial personality disorder. The October 1999 assessment notes a diagnostic impression of psychosis, not otherwise specified. The evidence of record indicates the veteran has subsequently received sporadic treatment for unspecified psychosis, paranoid schizophrenia, substance abuse and dependence, and major depressive episode. The veteran has most recently received treatment for substance dependence, rule out substance induced psychosis in October 2004. Although the veteran's medical records reflect treatment for a multiplicity of psychiatric disorders, the evidence does not reflect a competent diagnosis of a chronic disability characterized as depression. In this regard, the October 1999 VA assessment is the most probative evaluation of the veteran's disability picture. Although the veteran's treatment provider did not rule out major depression, the diagnostic impression indicated that the veteran's symptoms may be either related to or complicated by his substance abuse. The veteran's treatment records do not reflect treatment for a chronic disability characterized by depression, and further, the most current medical evidence available does not reflect a diagnosis of depression. The veteran has most consistently been treated for substance abuse and dependence disorders. The veteran does not have a current diagnosis of an acquired psychiatric disorder characterized by depression. In the absence of the claimed disability, service connection must be denied. See Brammer, 3 Vet. App. 223, 225. ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for depression is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs