Citation Nr: 0810371 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-39 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The veteran had active service from February 1969 to February 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied the above claim. FINDING OF FACT The veteran's low back disorder has not been shown to be etiologically related to his period of active service; nor does he have arthritis of the low back which was shown to have been manifested to a compensable degree during the first post service year. CONCLUSION OF LAW The criteria for the establishment of service connection for a low back disorder are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice required by the VCAA can be divided into four elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; (3) that VA will attempt to obtain; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the 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. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). By letters dated in September 2004, and in January, September, and October 2006, the veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was, in essence, told to submit all relevant evidence he had in his possession. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. With respect to the Dingess requirements, the claimant was provided with notice of the type of evidence necessary to establish a disability rating or effective date by the letter dated in October 2006. Adequate notice has been provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The veteran's relevant service and VA medical treatment records have been obtained. He has been provided VA medical examinations. There is no indication of any additional, relevant records that the RO failed to obtain. In sum, the Board finds the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandate of the VCAA. Service Connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). In order to prevail on the issue of service connection for any particular disability, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). 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 only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2007). Service connection for arthritis may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. ]9erwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In a statement accompanying his Appeal To Board Of Veterans 'Appeals (VA Form 9) received by the RO in November 2005, the veteran contends that he sustained a low back disorder during his period of active service when a bunker he was building collapsed, resulting in his being trapped beneath metal beams, sandbags, and a truck on which he was standing. He asserts that he was rescued and sent to a hospital by helicopter. He indicated that X-rays of his right hip were taken which proved to be negative. He was released after three or four days on pain medication, and with the use of crutches for ambulation, which he used for two months. He added that subsequent to service, in 1971 and 1983, he reported low back pain to VA, but that he received no treatment. The veteran's service medical records are completely negative for any findings of a low back disorder during his period of active service. His January 1971 separation examination showed that his spine and other musculoskeletal systems were normal. A report of medical history, also dated in January 1971 and completed by the veteran at the time of his separation from active service, indicated his denial of arthritis, rheumatism, or back trouble of any kind. Subsequent to service, a VA examination dated in June 1981 showed that the veteran's report of low back pain and stiffness, with occasional shooting pains into both thighs. The diagnosis was status post low back injury (strain). VA outpatient treatment records dated from August 2002 to June 2006 showed intermittent reports of symptoms associated with a low back disorder. A report in July 2003 showed that the veteran had worked as a construction worker mainly doing carpentry. Assessments included chronic mechanical low back pain, foraminal stenosis of the right side at L3/4 and L5/S1, spondylosis at L5-S1, and arthritis. In March 2006, the veteran testified at a personal hearing at the RO. He reported that during service, he injured his low back during the bunker collapse as described above. He indicated that his symptoms subsequent to service did not begin until many years later, and were first manifested as pain in the lower extremities which then radiated to his back. He also indicated that no medical professional had ever attributed his current low back disorder to service. Pursuant to the duty to assist the veteran in the development of his claim, a VA spine examination was conducted in April 2006, accompanied by a review of his entire claims file and VA medical records. Shipwash v. Brown, 8 Vet. App. 218, 222 (1995); Flash v. Brown, 8 Vet. App. 332, 339-340 (1995) (Regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the veteran's claims folder). The veteran reported that during service, he injured his low back during the bunker collapse as described above. The veteran indicated that he began to develop low back pain about two to three years earlier. He described that he was employed doing mobile home repair and set up since 1971. He added that this would require heavy lifting, and that he would have some low back pain at work. He noted no problems with activities of daily living. The diagnosis was L5 disc protrusion, based upon findings of a magnetic resonance imaging (MRI) study. The examiner added that physical examination of the veteran's spine was essentially normal. The examiner opined that the back problems at this time were not caused by or the result of the injury that occurred in 1969 in Vietnam. The examiner concluded that it was much more likely that the veteran's low back symptoms were secondary to his age and the fact that he had been working at a job that required heavy lifting since 1971. In a Statement In Support Of Claim (VA Form 2 1-4138) dated in November 2006, the veteran asserted that he had not been doing heavy lifting since 1971, but that he got his job with the heavy lifting about three years earlier. He added that there was some heavy lifting, but not every day. The Board finds that the preponderance of the evidence is against the veteran s claim of entitlement to service connection for a low back disorder. There is no evidence of an injury to the low back during the veteran's period of active service. The veteran's separation examination report showed that his spine was clinically normal; he had also indicated that he had never had back trouble of any kind. The separation examination report is highly probative as to the veteran's condition at the time of his release from active duty, as it was generated with the specific purpose of ascertaining the veteran's then-physical condition, as opposed to his current assertion which is proffered in an attempt to secure VA compensation benefits. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). The weight of the service medical records, including the January 1971 separation examination, is greater than subsequent VA outpatient treatment records which may be based on a history as provided by the veteran. The first medical evidence of record of symptoms which may be associated with a back disorder following service is not until the June 1981 VA examination report which provides a diagnosis of status post low back injury based upon a history as provided by the veteran. Apart from evidence that the examiner's assessment was made on the basis of primarily the veteran's account, the facts underlying the assessments are not substantiated by the record, as at the time he was separated from active service there were no residuals of low back injury. Moreover, this diagnosis was more than 10 years following discharge from service. Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds probative the April 2006 opinion of the VA examiner that stated that the veteran's current low back disorder was not related to his period of active service, but that it was much more likely that his low back symptoms were secondary to his age and the fact that he had been working at a job that required heavy lifting. This opinion is considered probative as it was definitive, based upon a complete review of the veteran's entire claims file, and supported by a detailed rationale. Accordingly, the opinion is found to carry significant probative weight. Among the 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. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). The competent medical evidence of record suggests that the veteran's currently diagnosed low back disorder was not caused by or a result of his period of active service. As the medical evidence of record has not established a nexus between the a current low back disorder and service, service connection must be denied. See Hickson, 12 Vet. App. at 253. To the extent that the veteran claims that he has a current low back disorder that is related to his active service, his assertions cannot be deemed competent as it has not been demonstrated that as a layperson, he is qualified to render a medical opinion regarding matters, such as diagnoses and determinations of etiology, calling for specialized medical knowledge. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The Board also recognizes that there is no evidence of record that the veteran was diagnosed with arthritis of the low back which had manifested to a compensable degree during the first year following his separation from service. Accordingly, entitlement to service connection for a low back disorder on a presumptive basis is also not warranted. See 38 C.F.R. §§ 3.307, 3.309 (2007). Accordingly, the veteran's claim of entitlement to service connection for a low back disorder is denied. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim of entitlement to service connection for a low back disorder. 38 U.S.C.A. §5 107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disorder is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs