Citation Nr: 0811259 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 03-28 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a lower back injury with degenerative disc disease. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs ATTORNEY FOR THE BOARD S.M. Cieplak, Counsel INTRODUCTION The veteran served on active duty from July 1959 to July 1969. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a December 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In February 2006, the Board remanded this matter to the RO to afford due process and for other development. Following its completion of the Board's requested actions, the RO continued the denial of the veteran's claim (as reflected in a July 2006 supplemental SOC (SSOC)) and returned this matter to the Board for further appellate consideration. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. A low back disorder was not demonstrated during the veteran's service, and degenerative arthritis of the lumbar spine was not present within one year following separation from service; a preponderance of the competent evidence of record is against concluding that a low back disorder was caused or aggravated by service. CONCLUSION OF LAW A low back disorder was not incurred or aggravated by active military service, nor may service incurrence of degenerative arthritis be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled by information provided to the veteran in letters from the RO dated in September 2002, February 2006, March 2006 and July 2006. Those letters notified the veteran of VA's responsibilities in obtaining information to assist the veteran in completing his claim, identified the veteran's duties in obtaining information and evidence to substantiate his claim, and requested that the veteran send in any evidence in his possession that would support his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. The RO has properly processed the appeal following the issuance of the required notice. Moreover, all pertinent development has been undertaken, examinations have been performed, and all available evidence has been obtained in this case. The appellant has not identified any additional evidence that could be obtained to substantiate the claim. Clearly, from submissions by and on behalf of the veteran, he is fully conversant with the legal requirements in this case. Thus, the content of these letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). No further action is necessary for compliance with the VCAA. Factual Background As noted above, the veteran's military service was from 1959 to 1969. His claim for service connection for a lumbar back injury was received in August 2001. He asserts that his back was initially injured in January or February 1962 and that he reinjured his back sometime during June to August 1968, at which time he was treated aboard the U.S.S. Kittyhawk. Service treatment records are entirely silent as to complaints, findings, treatment or diagnoses relating to a back injury. In fact, in his reenlistment physical examination report dated in July 1963, his spine was indicated as clinically normal and there was no mention as to the alleged back injury that is claimed to have occurred the year before. Service treatment records include some treatment records from 1969 while the veteran was aboard the U.S.S. Kittyhawk, but include no mention or reference to any back disorder. The veteran was afforded a VA examination in July 1970, at which time there were no complaints, findings and/or diagnoses as to any spine disorder and/or previous injury to his back. In September 2000, the veteran was seen for VA outpatient treatment of lower extremity claudication. He related the onset of pain beginning five years earlier while skiing. His reported medical history at that time was significant only for an angioplasty, PUD surgery and having logs falling on him when he was a child. In January 2001, he was evaluated by VA for claudication type symptoms radiating to his lower extremities, which symptoms "have been going on for many years, more or less in the last four years". After having some stents placed in blood vessels in his lower extremities for treatment of vascular claudication, his symptoms did not improve significantly. The physician noted that a MR scan done in 1999 did not reveal any significant regions of stenosis in the lumbar spine. Private treatment records from a chiropractor, P.R.P., D.C., reflect treatment for low back pain since December 1991. An October 2002 letter from that chiropractor reported degenerative changes to the L3-L4 area, which he presented as support for injury to the lumbar spine having taken place during the period from 1961 to 1966. Private treatment records from 1999 to 2000 from B.A.C., M.D., reflect treatment for lumbar radiculopathy via ESI (epidural spinal injection) with excellent relief of back and leg pain. August 2001 VA treatment records document occasional left lower extremity pain. MRI of the lumbar spine revealed a bulging disc at T-11-12, without significant herniation. The MRI was unremarkable for any disease requiring neurosurgical intervention. A buddy statement from October 2002 is advanced to verify that the veteran was hospitalized for several days for exposure from being thrown into the sea at sometime during 1961-1962, although the author acknowledges that he did not witness the incident leading to the hospitalization. The veteran was afforded a VA examination in June 2006 by a physician. The examiner carefully reviewed the claims file, including the opinion offered by the chiropractor. The examiner noted the absence of documentation as to any spine injury in service and that the veteran was even unable to recall what happened when he allegedly fell overboard because he was blacked out. The examiner concluded that it would be entirely speculative to state that the veteran's degenerative changes could be dated to a specific five year period as was done by the chiropractor. Law and Regulations Service connection may be granted for a disorder that was incurred or aggravated while on active duty. 38 U.S.C.A. §§ 1110, 1131. Service connection shall be granted to a veteran if the veteran served 90 days or more during a war period or after December 31, 1946 or had peacetime service on or after January 1, 1947, and degenerative arthritis, although not otherwise established as incurred in or aggravated by service, is manifested to a compensable degree within one year following the requisite service. 38 C.F.R. §§ 3.307, 3.309 (2006) 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. Each disorder for which a veteran seeks service connection must be considered on the basis of evidence, including that shown by his service records, his medical records, and pertinent medical and lay evidence. Id. In a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Dr. P.R.P.'s October 2002 opinion, while favoring entitlement to service connection, carries only slight probative weight. In this regard, VA "is not required to accept doctors' opinions that are based upon the appellant's recitation of medical history." Godfrey v. Brown, 8 Vet. App. 113, 121 (1995). Moreover, the June 2006 VA examination, after conducting a comprehensive review of the record, concluded that the evidence is insufficient to formulate anything other than a speculative opinion. Other evidence weighs heavily against the veteran's claim. Initially, the Board observes the absence of medical records supporting the veteran's contention that a back disorder occurred in service. Even the October 2002 buddy statement submitted in support of the claim denies having witnessed the purported incident and also does not support that the veteran experienced a back injury at the time; rather it suggests that the veteran was hospitalized for hypothermia. The Board additionally recognizes that the VA examination afforded in July 1970 was negative for a low back disorder, which for all intents and purposes, indicates that the veteran's lower back was normal upon separation from the military. Moreover, the Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). The Board also finds it significant that the veteran did not claim he experienced back pain as part of his original claim of service connection for a duodenal ulcer disorder, pes planus and for a fracture of the nasal septum in 1970. In fact, he did not initiate this claim until August 2001, some 32 years after service. See Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). After consideration of all of the evidence, the Board finds that the preponderance of the evidence is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361 (2001) (the benefit of the doubt rule applies only when the positive and negative evidence renders a decision "too close to call"). ORDER Service connection for a low back disorder with degenerative disc disease is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs