Citation Nr: 0811330	
Decision Date: 04/04/08    Archive Date: 04/14/08

DOCKET NO.  04-23 586	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, 
Mississippi


THE ISSUE

Entitlement to service connection for residuals of a back 
injury.


REPRESENTATION

Appellant represented by:	Daniel G. Krasnegor, Attorney 
at Law


WITNESSES AT HEARINGS ON APPEAL

The veteran and J.W.


ATTORNEY FOR THE BOARD

R. Kessel, Associate Counsel


INTRODUCTION

The veteran had active military service from January 1943 to 
June 1943.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an April 2003 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Jackson, Mississippi.

This case has been advanced on the Board's docket.

By an August 2005 decision, the Board denied the claim of 
service connection for residuals of a back injury.  
Thereafter, the veteran filed an appeal to the United States 
Court of Appeals for Veterans Claims (Court).  In December 
2006, the veteran's representative and VA General Counsel 
filed a joint motion for remand.  By an order later that 
month, the Court granted the joint motion and remanded the 
veteran's claim to the Board for further action.  In May 
2007, the Board remanded the claim to the RO for additional 
development.


FINDING OF FACT

The veteran does not have a low back disability that is 
attributable to his active military service.


CONCLUSION OF LAW

The veteran does not have residuals of a back injury that are 
the result of disease or injury incurred in or aggravated 
during active military service.  38 U.S.C.A. §§ 1101, 1110, 
1112, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 
3.159, 3.303, 3.304, 3.307, 3.309 (2007).




REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

The Board notes the enactment of the Veterans Claims 
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 
2096 (2000), in November 2000.  See 38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2007).  To 
implement the provisions of the law, VA promulgated 
regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a) (2007).  The VCAA and its implementing regulations 
include, upon the submission of a substantially complete 
application for benefits, an enhanced duty on the part of VA 
to notify a claimant of the information and evidence needed 
to substantiate a claim, as well as the duty to notify the 
claimant of what evidence will be obtained by whom.  
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, 
they define the obligation of VA with respect to its duty to 
assist a claimant in obtaining evidence.  38 U.S.C.A. 
§ 5103A; 38 C.F.R. § 3.159(c).  

The Board finds that all notification and development action 
needed to render a decision as to the claim on appeal has 
been accomplished.  Through February 2003, April 2005, and 
July 2007 notice letters, the RO notified the veteran and his 
representative of the information and evidence needed to 
substantiate the veteran's claim.  In the July 2007 notice 
letter, the RO provided the veteran with the criteria for 
assigning disability ratings and effective dates.  See 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, 
Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  
Although the complete notice may not have been provided until 
after the RO initially adjudicated the veteran's claim, the 
claim was properly re-adjudicated in December 2007, which 
followed the adequate notice.  See Prickett v. Nicholson, 
20 Vet. App. 370, 376-77 (2006).  Consequently, a remand of 
the service connection issue for further notification as to 
how to substantiate the claim is not necessary.

The Board also finds that the February 2003, April 2005, and 
July 2007 notice letters satisfy the statutory and regulatory 
requirement that VA notify a claimant which evidence, if any, 
will be obtained by the claimant and which evidence, if any, 
will be retrieved by VA.  See Quartuccio v. Principi, 16 Vet. 
App. 183, 187 (2002) (addressing the duties imposed by 
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)).  In those 
letters, the RO notified the veteran that VA was responsible 
for obtaining relevant records from any Federal agency and 
that the RO would make reasonable efforts to obtain relevant 
records not held by a Federal agency, such as from a state, 
private treatment provider, or an employer.  Additionally, 
the notice letters requested the veteran to submit medical 
evidence, opinions, statements, and treatment records 
regarding his disability.  The veteran was also told to send 
in any evidence in his possession that pertained to the 
claim.

There is no indication that any additional action is needed 
to comply with the duty to assist in connection with the 
issue on appeal.  The veteran's service medical records have 
been obtained and associated with the claims file, as have 
treatment records from the VA Medical Centers (VAMCs) in 
Chicago, Illinois, and Memphis, Tennessee.  The veteran has 
submitted records from J.E.C., M.D., a private treatment 
provider.  Additionally, pursuant to the Board's remand, the 
veteran was provided a VA examination in connection with his 
claim in October 2007, the report of which is of record.  
Furthermore, the veteran was afforded a hearing before the RO 
in August 2004 and before the Board in July 2005, the 
transcripts of which are also of record.  Significantly, the 
veteran has not otherwise alleged that there are any 
outstanding medical records probative of his claim on appeal 
that need to be obtained.

II. Analysis

Service connection may be established for disability 
resulting from disease or injury incurred in or aggravated by 
active military service.  38 U.S.C.A. § 1110 (West 2002); 
38 C.F.R. §§ 3.303, 3.304 (2007).  In addition, certain 
chronic diseases, such as arthritis, may be presumed to have 
been incurred during service if the disease becomes manifest 
to a compensable degree within one year of separation from 
qualifying military service.  38 U.S.C.A. §§ 1101, 1112, 1113 
(West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007).

The veteran asserts that he has low back pain resulting from 
an injury to his back during active military.  Specifically, 
the veteran states that he hurt his back dismounting from a 
40mm gun during basic military training.  He states that he 
also injured his back the next day during a 22-mile hike.  
The veteran alleges that he has experienced low back pain 
ever since the in-service injuries and continues to be 
treated for low back pain.  Thus, he believes that service 
connection is warranted.

A review of the veteran's service medical records does not 
reveal information concerning the veteran's claimed in-
service back injuries.  However, an April 1943 physiotherapy 
record reflects a diagnosis of chronic back pain.  It was 
noted that a back examination was essentially negative and 
the treatment provider stated that he did not believe that 
the veteran's back should keep him from duty.  In June 1943, 
the veteran was medically discharged.  His physical condition 
was described as poor at discharge, although no detailed 
information regarding the back was provided.

Post-service medical records document regular treatment for 
low back pain by Dr. J.E.C. since June 1992.  Dr. J.E.C. has 
diagnosed the veteran with low back pain, osteoarthritis, and 
degenerative disc disease of the lumbar spine.  In a November 
2005 statement, Dr. J.E.C. stated that the veteran's low back 
pain was a long-standing matter and chronic.  Dr. J.E.C. also 
stated that he could not determine the etiology of the 
persistent back pain at that time.

The veteran has also received regular treatment through the 
Memphis VAMC.  An entry in the progress notes regarding 
September 1989 x-rays of the lumbar spine shows findings 
consistent with degenerative disease.  X-rays from February 
1994 and November 2001 reflect mild degenerative changes of 
the lumbar spine.  The November 2001 x-ray indicates a 
compression fracture at L1, as well.  VA treatment records 
from November 2000 to July 2007 are negative for an etiology 
of the veteran's back disabilities.

In October 2007, the veteran was afforded a VA examination in 
connection with the claim.  The examiner noted the veteran's 
current complaints of low back pain and his statement 
regarding continuous low back pain since an in-service injury 
in 1943.  After examining the veteran, the examiner provided 
diagnoses of moderate degenerative disc disease with 
spondylosis at L5-S1 and an old L1 compression fracture.  
After an extensive review of the claims file, the examiner 
opined that he believed that the veteran's current back pain 
was less likely as not a result of his service in 1943.  The 
examiner reasoned that the veteran's compression fracture 
definitely appeared much later as there have been several 
reports of normal x-rays since his injury.  The examiner also 
stated that it was possible the degenerative changes may be a 
result from a disc injury.

In this case, it is clear from the evidence that the veteran 
has a current low back disability.  He has been diagnosed 
with arthritis and degenerative disc disease of the lumbar 
spine along with a compression fracture at L1.

There is also evidence of in-service complaints of back pain.  
An April 1943 physiotherapy record reflects a diagnosis of 
chronic back pain.  The veteran contends that his in-service 
complaint of back pain was the result of two separate back 
injuries.  However, while there is no documentation of the 
veteran's claimed injuries during his military service, and 
the veteran is not competent to provide an in-service 
diagnosis of a low back disability, he is competent to report 
factual matters of which he had first hand knowledge, such as 
the stated low back injuries that took place during basic 
training and his resultant low back pain.  See Washington v. 
Nicholson, 19 Vet. App. 362 (2005).  Thus, in addition to the 
April 1943 record reflecting chronic back pain, there is 
sufficient lay testimony of an in-service injury.

Despite evidence of a current low back disability and in-
service injuries and a complaint regarding the back, there 
must be medical evidence of a nexus between the two in order 
for service connection to be warranted.  See 38 U.S.C.A. 
§ 1110; 38 C.F.R. § 3.303.

In consideration of the evidence of record, the Board finds 
that the veteran does not have a low back disability that is 
attributable to his active military service.  The only 
competent medical evidence that directly addresses the matter 
is the VA examiner's opinion from October 2007, which fails 
to link the veteran's current back disability (degenerative 
disc disease and/or compression facture) to his active 
service.  The examiner observed that the radiological 
evidence showed that the compression fracture occurred "much 
later" than the veteran's purported in service back injury.  
He also determined that the veteran's current back pain was 
less likely as not related to his active service in 1943.  
The Board acknowledges that the examiner left open the 
possibility that the veteran's disc disease was the result of 
an injury.  He did not indicate whether the injury occurred 
in service or post-service.  However, given the fact that the 
examiner had in his previous sentence determined that the 
veteran's compression facture (injury) appeared much later, 
the Board finds that this opinion strongly suggests that the 
veteran's degenerative disc disease is related to a post-
service injury.  

Moreover, even if one were to find that the opinion did 
reference the veteran's in-service injury, the Board notes 
that the examiner indicated that it was only "possible" 
that his degenerative changes were the result of a disk 
injury.  The "possibility" of a connection is not 
sufficient to raise a reasonable doubt.  See Morris v. West, 
13 Vet. App. 94, 97 (1999) (diagnosis that appellant was 
"possibly" suffering from schizophrenia deemed speculative); 
Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (treating 
physician's opinion that appellant's time as a prisoner of 
war "could" have precipitated the initial development of his 
lung condition found too speculative to provide medical nexus 
evidence to well ground cause of death claim); Obert v. 
Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that 
the appellant may have been having some symptoms of multiple 
sclerosis for many years prior to the date of diagnosis 
deemed speculative); Stegman v. Derwinski, 3 Vet. App. 228, 
230 (1992) (evidence favorable to the appellant's claim that 
does little more than suggest a possibility that his 
illnesses might have been caused by service radiation 
exposure is insufficient to establish service connection); 
Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991) (medical 
treatise submitted by appellant that only raises the 
possibility that there may be some relationship between 
service-connected sickle cell anemia and the appellant's 
fatal coronary artery disease does not show a direct causal 
relationship between the two disorders such as to entitle the 
appellant to service connection for cause of death).  Dr. 
J.E.C. did state that the veteran's current low back pain was 
chronic and long-standing in nature, but he expressly 
admitted that he could not provide an etiology.  Accordingly, 
because the competent medical evidence reflects fails to 
relate veteran's in-service back injuries or his complaint of 
back pain, and his current low back disabilities, service 
connection is not warranted for residuals of a back injury.

Added to this, the Board does not find that the post-service 
record supports the veteran's assertions of having chronic 
low back pain, or the currently diagnosed low back 
disabilities, since his in-service injuries.  While he was 
hospitalized in August 1947 at the Memphis VAMC for chest 
pain, the veteran had complaints of radiating back pain, but 
he stated that the pain originated in the left cardiovascular 
area.  In August 1955, the veteran was hospitalized at the 
Memphis VAMC for hemorrhoids.  He also reported occasional 
left-sided back pain at that time, but he did not refer to 
his in-service injuries, rather the veteran stated the pain 
was related to heavy work.  In September 1965, the veteran 
was again hospitalized for chest pain, this time at the 
Chicago VAMC.  The report indicates that his physical 
examination was essentially negative.  In August 1966, the 
veteran underwent VA examination in connection with a pension 
claim.  In the musculoskeletal portion of the examination 
report, the entry stated that there was no significant 
disability.  Moreover, in applications for pension, dated in 
August 1955, September 1965, June 1973, and May 1992, the 
veteran noted that he suffered impairment from certain 
disabilities, but he never referred to low back pain or the 
currently diagnosed low back disabilities.  Thus, the Board 
does not find that the veteran's assertions are substantiated 
by the historical record; that is, the prior medical findings 
or his own statements and actions.  Here, the competent 
medical evidence is more probative than the veteran's 
unsubstantiated contentions.  Therefore, service connection 
for residuals of a back injury is not warranted.

Additionally, the Board notes that there is no objective 
evidence that arthritis of the low back manifested itself to 
a compensable degree within one year of the veteran's 
separation from military service.  As noted above, 
degenerative changes were first seen in the lumbar spine in 
the September 1989 x-rays, which occurred many years after 
service.  The lapse of 40 years between the veteran's 
separation from service and the first treatment for low back 
disability is evidence against the claim.  See Maxson v. 
Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000).  Thus, service 
connection is not warranted for arthritis on a presumptive 
basis.  See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 
3.309.

The veteran's own statements and hearing testimony are the 
only evidence that contradicts the VA examiner's opinion.  As 
noted above, the veteran states that he has had back pain 
since service and he believes that his current low back pain 
is related to the in-service injuries.  While the Board does 
not doubt the sincerity of the veteran's belief that his 
current low back pain and disabilities are related to his 
time in service, as a lay person without the appropriate 
medical training or expertise, he is not competent to provide 
a probative opinion on a medical matter-such as the etiology 
of a current disability.  See Bostain v. West, 11 Vet. 
App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. 
App. 492, 494 (1992)).

For all the foregoing reasons, the Board finds that the claim 
of service connection for residuals of a back injury must be 
denied.  In reaching this conclusion, the Board has 
considered the applicability of the benefit-of-the-doubt 
doctrine.  However, as the preponderance of the evidence is 
against the veteran's claim of service connection, that 
doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 
38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 
(Fed. Cir. 2001).


ORDER

Service connection for residuals of a back injury is denied.


____________________________________________
MICHAEL A. HERMAN
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs