Citation Nr: 0811217 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 05-35 762A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The veteran served on active duty from March 1976 to August 1976, and from December 1977 to November 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. . FINDING OF FACT A low back disorder is not shown by the evidence of record to be related to the veteran's military service. CONCLUSION OF LAW A low back disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION VA has certain notice and assistance requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Prior to the initial adjudication of the instant case, the RO's December 2004 and January 2005 letters advised the veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). A subsequent letter in March 2006, which was followed by a supplemental statement of the case in August 2006, notified the veteran of effective dates and the assignment of disability evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA defect may be cured by issuance of a fully compliant notification followed by a re-adjudication of the claim); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Moreover, there is no prejudice to the veteran as to these considerations because the claim for entitlement to service connection for low back disorder has been denied. Further, the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Thus, the Board finds that the content requirements of the notice VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In addition, the duty to assist the appellant has also been satisfied in this case. The RO has obtained all of the veteran's service medical records, as well as his identified VA medical treatment records and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The veteran has also been provided with a VA examination addressing the etiology of his current low back disorder. Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection for certain chronic diseases, including arthritis, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. For the showing of a 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." 38 C.F.R. § 3.303(b). Continuity of symptomatology is required where the disorder noted during service is not 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. Id. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to prevail on the issue of service connection 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). The veteran contends that he injured his low back while in the service in 1978. A review of his service personnel records revealed that he served on active duty in the Army from March 1976 to August 1976, and from December 1977 to November 1979. Treatment reports, dated in July 1978, noted the veteran's complaints of and treatment for low back pain for period of one week. The initial treatment report, dated in July 12, 1978, noted that the veteran had slipped and fell on his back hitting a locker. Examination of the lumbar spine, dated in July 1978, noted that the veteran had injured his back when a rug slipped out from under him causing him to fall. An x-ray revealed findings of minimal straightening of the lumbar spine consistent with pain or muscle spasm, but no fracture, dislocation or significant degenerative changes were identified. The report concluded with an impression of no significant pathology identified. Subsequent treatment reports were silent as to any ongoing complaints or diagnosis of low back pain. The report of the veteran's separation examination, performed in August 1979, noted that his spine was normal. A medical history report, completed at that time, denied any history of recurrent back pain. A letter from G. Schell, M.D., dated in August 1995, noted the veteran's history of back problems since an inservice injury in which he was picked up and twisted over a locker against the wall. The letter noted that the veteran has had intermittent trouble with his low back ever since that time, but has been working and had been very active, doing manual work over the years. The report noted that this condition had flared up intermittently over the years, but had increased considerably in the past year, with pain radiating downward into the left leg along with a fair bit of spasm in the area. A subsequent letter from Dr. Schell, dated in September 1995, noted that the veteran would need a good exercise program for his back prior to getting back to his employment in a logging job, which Dr. Schell noted requires a considerable amount of stress be placed upon his spinal elements. A treatment report, dated in September 1995, noted that the veteran underwent a cervical myelogram, and received a post- operative diagnosis of cervical radiculopathy. A magnetic resonance imaging scan (MRI) of the lumbar spine, performed in September 1995, revealed an impression of degenerative disc disease and lateral herniation at L4-L5 on the left. In October 1995, the veteran underwent a left L4 hemilaminectomy with removal of the L4-L5 disc. The operative report noted a post-operative diagnosed of disc herniation, left L4-L5, intractable radiculopathy. A treatment report, dated in April 2004, noted the veteran's complaints of increasing low back pain. The report noted the veteran's history of a back injury in during his military service in 1979, which has continued to worsen ever since. It also noted the veteran's history of a laminectomy in 1992. An MRI examination of the lumbar spine, performed in May 2004, concluded with an impression of evidence of laminectomy of the L4-L5 level on the left side, small disc bulging at this level on the left side and enhancement on the IV contrast study, probably due to previous surgery, however, a small herniated disc still should be considered. There was minimal narrowing of the left neural foramen. A treatment letter, dated in October 2004, was received from G. Schell, M.D. In his letter, Dr. Schell noted that the veteran has had problems with severe back pain and radicular pain for quite some time. The letter noted the veteran's history of back surgery about ten years earlier. It also noted that the veteran's current back pain was pronounced and incapacitating. The veteran filed his present claim seeking service connection for a low back disorder in December 2004. In February 2005, the veteran underwent a decompressive lumbar laminectomy, L4 with a lateral mass fusion, L4-L5, using a right autogenous iliac bone graft and bone morphogenetic protein. A treatment report, dated in March 2005, noted that the veteran had undergone a 360 degree lumbar cage with pedicle screw fusion in February 2005. In March 2005, a VA examination of the spine was conducted. The VA examiner noted that the veteran had recently undergone surgery, and that the examination should be rescheduled sometime after the acute postoperative period and after postoperative physical therapy was complete. In June 2006, a second VA examination of the spine was conducted. The VA examiner noted that the veteran's claims folder was reviewed in a page by page manner. The report noted an inservice history of a back injury when the veteran was picked up and wrapped around a wall locker. The report also noted the veteran's post service history of treatment for a back disorder. Following a physical examination, the report concluded with a diagnosis of degenerative disc disease and status post bilateral laminectomy, disc level L4- L5. Based upon a review of the record and physical examination of the veteran, the VA examiner opined that the veteran's current low back condition was not caused by or the result of his military service. In support of this opinion, the VA examiner noted that there is no documentation found in the veteran's claims folder or in the medical literature which substantiates the causal effect between a soft tissue injury in 1979 and the development of disc herniation at L4- L5 more than ten years later. Based upon a review of the record, the Board concludes that service connection is not warranted for the veteran's current low back disorder, diagnosed as degenerative disc disease, status post bilateral laminectomy at L4-L5. As noted above, the veteran's service medical records reflect treatment for complaints of low back pain for a one week period in July 1978. Despite the incidence of treatment for low back pain, a chronic inservice low back disorder is not shown. There is no follow up or further treatment for the back in service is shown. Subsequent inservice treatment reports are silent as to any further complaints of or treatment for a low back disorder for the remaining 16 months of service. The report of his separation examination, performed in August 1979, noted that his spine was normal. Moreover, a medical history report, completed at that time, denied any history of recurrent back pain. Following his discharge from the service, the first post service treatment for a low back disorder is not shown until 1995, over twenty- five years after the veteran's discharge from the service. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). The only competent evidence of record addressing the issue of whether the veteran's current low back disorder is related to his inservice treatment for back pain goes against the veteran's claim herein. Specifically, the VA examiner in June 2006 opined that the veteran's current low back disorder, diagnosed as degenerative disc disease, status post bilateral laminectomy at L4-L5, was not caused by or the result of his military service. In support of this opinion, the VA examiner noted that there was no documentation found in the veteran's claims folder or in the medical literature which substantiates the causal effect between a soft tissue injury in 1979 and the development of disc herniation at L4-L5 more than ten years later. The Board acknowledges that the veteran can provide competent evidence about what he experienced; for example, his statements are competent evidence as to what symptoms he experiences. However, the veteran's statements, as a lay person, are not competent evidence to establish a relationship between his period of service and his current low back condition. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). While some of the veteran's post service treatment reports reference the veteran's inservice history of a low back injury, the United States Court of Appeals for Veterans Claims has held that medical professionals are not competent to transform a lay history, unenhanced by medical comment, into competent medical evidence based on their status as medical professionals. See Elkins v. Brown, 5 Vet. App. 474, 478 (1993); LeShore v. Brown, 8 Vet. App. 406 (1995). In the absence of medical evidence that the veteran's current low back disorder is related to his military service, the preponderance of the evidence is against the veteran's claim for service connection. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs