Citation Nr: 0810302 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-28 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for low back strain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. R. Weaver INTRODUCTION The veteran served on active duty from December 1983 to November 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that denied service connection for low back strain. FINDING OF FACT The competent medical evidence contains an approximate balance of positive and negative medical nexus opinions that satisfactorily prove or disprove the claim. Hence, doubt must been resolved in favor of the claimant. CONCLUSION OF LAW The veteran's low back strain was incurred in service. 38 U.S.C.A. §§ 1110, 1131(West Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in February 2004; rating decisions in June and September 2004; and a statement of the case in July 2005. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazquez- Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the May 2006 supplemental statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained a medical examination in relation to this claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. A claimant with active service may be granted service connection for disease or disability either incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Certain chronic diseases may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The disease entity for which service connection is sought must be chronic as opposed to merely acute and transitory in nature. 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. Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Where the fact of chronicity in service is not adequately supported a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West , 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The record before the Board contains service medical records and post-service medical records, which will be addressed as pertinent. Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). The veteran asserts that he has low back pain that has not subsided since he was repeatedly diagnosed with low back strain in service. VA treatment records show that the veteran is currently being treated for back pain. An MRI conducted in November 2005 indicated lumbar disc herniation to the left, arthritis in the right sacroiliac joint, and back pain referred to the right leg. Therefore, the pivotal issue is whether the veteran's current back condition is the result of an injury or disease incurred during service. The veteran's service medical records show that he was treated for a lumbar strain in May 1986 and acute lower back pain in July 1987. A medical examination report from October 1987, one month before separation, notes a history of intermittent low back pain with no radiation. A private doctor of chiropractic and naturopathic medicine submitted a letter in December 2003 wherein he stated that the veteran had been under his care for regular chiropractic treatment for the last year. After noting his review of the veteran's history and medical records, the doctor opined that the veteran's current lower back pain was "probably due to an injury he described that happened during his military service." The veteran was diagnosed with segmental joint dysfunction of the lumber and sacrum, muscle spasm, and rupture or herniation of lumbar disc. In February 2004, a private physician, Dr. D., issued a "Certificate to return to work" that indicates that veteran has had low back sprain since August 1988. The veteran underwent a VA examination in May 2004. He reported that he was required to lift heavy pipe and sheet metal during service and began noticing back pain in 1985. He stated that he had pain, weakness, and stiffness that required biweekly chiropractic visits and daily medication. On examination, the veteran walked without a limp and did not require assistance to remove his clothes or get on the examination table. There was no redness, swelling, or local tenderness on the lower lumbar spine area. Range of forward flexion was 0 to 80 degrees actively, passively, and repetitively. Lateral flexion was 0 to 25 degrees bilaterally, actively, passively, and repetitively. Lateral rotation was 0 to 45 degrees bilaterally, actively, passively, and repetitively. Bilateral lower leg muscle strength was 5/5. Deep tendon reflexes were normal with sensory intact. Straight leg raise test was 0 to 90 degrees bilaterally without complaints of pain. There was no weakness, fatigability, or pain throughout any movement or with repetitive motion. The veteran was diagnosed with low back strain, repeated episode with changes in body position, normal range of movement, and normal x-ray findings. The examiner noted his review of the claims file and opined that it was not at least as likely as not that the veteran's low back strain with repeated episode was related to low back pain in military service. The private doctor of chiropractic and naturopathic medicine submitted a second letter in August 2004 reaffirming his conclusion that the veteran is "most probably" suffering from the same or a similar back problem as the one noted during service. He based his opinion on his review of the veteran's service medical records and his discussions with the veteran. Dr. D. also submitted a second letter in August 2004 wherein he stated that the veteran had received multiple muscle relaxers, pain medications, and physical therapy for back pain from 1988 to the present. Yet, Dr. D's treatment records from 1988 to 2002 show that the veteran was first treated for back pain in June 1990. After a thorough review of the record, the Board finds the veteran is not entitled to presumptive service connection because the medical evidence does not show that any arthritis of the back manifested within one year of separation. Thus, the Board must reconcile the conflicting nexus opinions of record by determining how much weight is to be attached to each one. Guerrieri v. Brown, 4 Vet. App. 467 (1993). In his correspondence, Dr. D does not draw a connection between the veteran's current disability and service. He simply establishes that the veteran began receiving treatment for his back in June 1990. Accordingly, the Board must look to the opinions of the private doctor and the VA examiner. The RO afforded little weight to the opinion of the doctor of chiropractic and naturopathic medicine because it concluded that he is not a "medical doctor." However, it is the Board's judgment that as a medical professional who has been trained to diagnose and treat diseases, the doctor is competent to provide a nexus opinion based on his review of the claims file. Goss v. Brown, 9 Vet. App. 109 (1996) (treating nurse's statement may be enough to well ground claim where the nurse participated in the treatment of the veteran for symptoms of frostbite). The opinion offered by the doctor is concrete, consistent with other evidence in the record, and based his treatment of the veteran and his review of service medical records. Prejean v. West, 13 Vet. App. 444 (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 record offers no reason to doubt the doctor's credibility. Accordingly, the Board finds his opinion that the veteran's current back problems are the same or similar to those noted in service is persuasive. The VA examiner's opinion that the veteran's current low back strain with repeated episode is not likely related to low back pain noted in service is also concrete and based on a contemporaneous exam and review of all of the available records. Accordingly, it too is credible and persuasive. Since the competent medical evidence is in equipoise with regard to whether the veteran's current back condition is related to his active duty, the Board will resolve all reasonable doubt in favor of the veteran. 38 C.F.R. § 3.102 With all reasonable doubt resolved in favor of the claimant, the Board finds that the veteran's current low back strain is as likely as no related to the inservice complaints of and treatment for low back strain. Accordingly, service connection must be granted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for low back strain is granted. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs