Citation Nr: 0810348 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 06-00 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for the postoperative residuals of lumbosacral strain, with degenerative disc disease. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The veteran served on active duty from November 1963 to October 1966. Medical records on file reveal he was a Member of the Reserve for some years after this active duty. There is no allegation that the disorder at issue herein was incurred during any period of Reserve duty. This case comes to the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACT A chronic low back disorder, including lumbosacral strain, with degenerative disc and joint disease, was not evident during service or until many years thereafter and is not shown to have been caused by any in-service event. CONCLUSION OF LAW A chronic low back disorder was neither incurred in nor aggravated by service nor may degenerative joint disease be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Board must first address the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. § 5100 et seq. (West 2002); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The law addresses the notification and assistance requirements of VA in the context of claims for benefits. In this regard, the Court has held that a 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. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the Court held that a notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must accomplish the following: (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)." Id. In a VCAA letter dated in November 2003, the RO notified the appellant of the information and evidence necessary to substantiate the claim, the information and evidence that VA would seek to provide, and the information and evidence the appellant was expected to provide. In addition, the RO asked the appellant to submit any evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2003); Quartuccio v. Principi, 16 Vet. App. 183 (2002). During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In March 2006, the veteran was provided with all necessary notifications. In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131. In addition, certain chronic diseases, including degenerative joint disease, may be presumed to have been incurred during service if they first become manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The veteran is claiming service connection for a low back disorder, for which he underwent a surgical procedure in December 2003. He contends that he had back pain while on active duty, from which he was discharged in 1966, and that he consistently had a back disorder since that time. The Board has reviewed the entire evidence of record, including lay statements submitted on behalf of the veteran, the service treatment records, private treatment records, and the results of a VA compensation examination in November 2003, and can find no basis to establish service connection for the veteran's low back disorder. In support of his contention he has submitted lay statements from several people, including his wife, sister and a friend, who indicate that they remember the veteran having consistent complaints of back pain since the time he was discharged from service. Review of the service treatment records, however, show no complaint or manifestation of a back disorder and, even more significantly, records of examinations given to the veteran in connection with reserve duty in 1977 and 1981 also show no complaints of back pain or of a back disorder. During this time he repeatedly denies a history of recurrent back pain. The earliest complaint of a back disorder is shown on a medical history form that the veteran signed in connection with a reserve examination conducted in 1985. It was explained that he had occasional back aches. At that time, clinical evaluation of the spine was normal. The first diagnosis of a low back disorder is shown on private treatment records dating from 1989, at which time lumbar spine spondylosis and a herniated nucleus pulposus at L4-L5 was diagnosed. Later records show additional diagnosis of low back disabilities. In an August 2003 statement, one of the veteran's private physicians, who had treated the veteran since March 2002, indicated that the veteran related a history of back pain that was the result of an injury sustained while in service. In December 2003, the veteran underwent a laminectomy from L2 to L5, with bilateral foraminotomy. The statements made by and on behalf of the veteran are duly noted, but the Board finds that the overwhelming weight of the evidence is against the veteran's claim. The medical evidence does not show any low back complaints during service or until almost 20 years after the veteran was discharged from active duty. Repeated examinations during the time reveal normal findings, thus the history as reported in lay statements is contradicted. There is no medical opinion of record that the current low back disorder is in any way related to service. Although the veteran's private physician indicates that the veteran had complaints of back pain during service, he did not begin to treat the veteran until 2002 and the mere recitation of his history does not constitute competent medical evidence of a connection with service. See Reonal v. Brown, 5 Vet. App. 458 (1993). Under these circumstances, as the veteran's low back disorder was not manifested during service, within one year thereafter, and has not been otherwise shown to be related to service, the claim must be denied. See Boyer v. West, 210 F.3d 1351 (Fed. Cir 2000). ORDER Service connection for the postoperative residuals of lumbosacral strain, with degenerative disc disease, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs