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