Citation Nr: 0810932 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 04-09 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. A. Jonas, Associate Counsel INTRODUCTION The veteran served on active duty from October 1981 to October 1985 and from January 1991 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta Georgia. In October 2006, the Board remanded the case to the RO via the Appeals Management Center (AMC) in order to conduct an additional VA examination. FINDINGS OF FACT The veteran's current back condition is not related to his active military service. CONCLUSION OF LAW The veteran's current back condition was not incurred during his active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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 injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The Board acknowledges that the veteran reported back pain before and during service. A November 1983 service medical record notes low back pain for two weeks, which had started after basketball practice. Several weeks prior, as the veteran asserts, he felt pain in his back after moving a refrigerator. A clinician noted that X-rays showed slight narrowing of L5-S1, deemed not significant. No examination was conducted upon separation in October 1985. The veteran reported recurrent back pain in a 1989 quadrennial examination. However, the examiner indicated that the spine and musculoskeletal systems were normal. Private post-service clinical evidence reflects treatment for recurrent low back pain beginning in the mid-1990s, and a significant portion of post-service medical records concerning low back pain are dated within the last few years. The veteran underwent a VA examination in April 2004. The VA examiner diagnosed the veteran with lumbosacral strain. The VA examiner opined that there was no progression of disease because the X-rays were normal and did not show narrowing of L5-S1 as was the case with the November 1983 X-rays. The VA examiner further opined that the veteran's recurrent back pain was not likely related to the 1983 incident in service. Dr. Okoro of Southside Internal Medicine submitted an August 2006 letter opining that it is possible that the veteran's back pain may have resulted from the 1983 injury in service. Pursuant to the October 2006 Board remand, the veteran underwent a VA examination in May 2007. The VA examiner reviewed the claims file including all previous medical opinions and records. X-rays showed the L5-S1 disk space to be slightly narrower than L4-5. However, as the VA examiner commented, it was still within normal limits. The diagnosis was chronic lumbar strain. The VA examiner opined that the chronic lumbar strain has been significant since approximately 1991. Further, the VA examiner opined that the veteran's current back pain is not related to his active duty service. This opinion is based on the rationale that the veteran's back pain promptly abated after the refrigerator incident in 1983 despite being aggravated by playing basketball a few weeks later. The VA examiner notes that the veteran did not complain of back pain on a regular basis until ten years later. Thus, the VA examiner concludes that the veteran's spine returned to normal after the mild trauma sustained in 1983. The Board finds the May 2007 VA examiner's opinion to have high probative value because it is based on all of the medical evidence of record, and it is supported by a well-reasoned and detailed rationale. Thus, the claim of service connection for a back condition must be denied. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b)(2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Proper notice must also ask the claimant to provide any evidence in his or her possession that pertains to the claim. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). There is no issue as to providing an appropriate application form or completeness of the application. VA notified the appellant in December 2001 of the information and evidence needed to substantiate and complete claims for service connection, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim and by conducting VA examinations. The claimant was afforded a meaningful opportunity to participate in the adjudication of the claims. The Board acknowledges that the appellant was not provided notice of the appropriate disability rating and effective date of any grant of service connection until March 2006. However, there is no prejudice to the appellant in proceeding with the issuance of a final decision despite VA's failure to provide more timely notice, as his claim for service connection is being denied. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs