Citation Nr: 0812292 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 06-11 302 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for lumbar discogenic disease, L3-L4 early degenerative disc changes and L4-L5 with lumbar myositis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD L. A. Rein, Associate Counsel INTRODUCTION The veteran had active military service from June 1987 to December 1987, from November 1997 to July 1998, and from February 2003 to August 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2003 rating decision in which the RO, inter alia, denied the claim on appeal. The veteran filed a notice of disagreement (NOD) in November 2005, and the RO issued a statement of the case (SOC) in February 2006. The veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in March 2006. In February 2008, the veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. During the hearing, the veteran submitted additional evidence, along with a signed waiver of RO consideration of the evidence. This evidence is accepted for inclusion in the record. See 38 C.F.R. §§ 20.800, 20.1304 (2007). Also, during the February 2008 hearing, and in a contemporaneously filed statement (via a VA Form 21-4138), the veteran withdrew his claim for service connection for a right shoulder condition. As this issue is no longer before the Board (see 38 C.F.R. § 20.204 (2007)), the appeal now encompasses only the matter set forth on the title page and addressed above. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim remaining on appeal has been accomplished. 2. The only competent opinion on the question of a medical relationship between the veteran's current low back disabilities and service, to include aggravation of a pre- existing disability, weighs against the claim. CONCLUSION OF LAW The criteria for service connection for lumbar discogenic disease, L3-L4 early degenerative disc changes and L4-L5 with lumbar myositis, are not met. 38 U.S.C.A. §§ 1110, 1111, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in an April 2004 pre-rating letter, the RO provided notice to the appellant regarding the information and evidence needed to substantiate his claim for service connection for a low back condition. This letter also informed the veteran of what information and evidence must be submitted by the veteran, and what information and evidence would be obtained by VA. The April 2004 further requested that the veteran submit any additional information or evidence in his possession that pertains to his claim, and the claims file reflects that the veteran has submitted evidence in support of his claim. The November 2004 RO rating decision reflects the initial adjudication of the claim after issuance of the notice letter. Hence, the April 2004 letter-which meets all four of Pelegrini's content of notice requirements-also meets the VCAA's timing of notice requirement. The Board also notes that a February 2008 post-rating letter provided the veteran with information regarding disability ratings and effective dates. Although this letter was provided after the initial adjudication of the claim, amd not followed by readjudication of the claim, the timing of this notice is not shown to prejudice the veteran. As the Board's decision herein denies the claim for service connection, no disability rating or effective date is being, or is to be, assigned. Hence, there is no possibility of prejudice to the veteran under the notice requirements of Dingess/Hartman. Additionally, the record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. As a result of these efforts, service medical records, VA medical records, private medical records, the reports of May 2004 examinations, and a November 2004 VA opinion have been associated with the claims file. Also of record and considered in connection with the appeal is the transcript of the February 2008 Board hearing, as well as various written statements provided by the veteran as well as by his representative and a fellow service member, on his behalf. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the appellant has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). During the February 2008 Board hearing, the veteran testified that he did not have any problems with his back before a June 2003 incident during active service where he injured his back. The veteran further asserted that service connection is warranted for his current low back conditions as they are directly related to the June 2003 incident in service. However, the veteran's representative asserted that the veteran did have a pre-existing back condition that was aggravated by and made worse after the June 2003 injury the veteran sustained to his back.. Post-service medical records from the veteran's third period of active duty, such as May 2004 VA examination reports, a November 2004 VA opinion, an October 2006 private medical record and an October 2006 VA MRI report reflect current complaints of low back pain and current diagnoses of low back disabilities. However, the overall medical evidence reflects that the veteran had complained of low back problems (specifically of recurrent low back pain) before, during, and since his third period of active military service. The question that thus remains is whether there exists a medical relationship between any currently diagnosed low back disability and service, a question that, initially, requires consideration of the presumption of soundness. [Parenthetically, the Board notes that the RO has considered the claim under both incurrence and aggravation theories of entitlement, and the Board will do likewise.]. Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. In July 2003, the VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show, by clear and unmistakable evidence, (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Service medical records prior to the veteran's third period of active service reflect that the veteran had complained of recurrent low back pain. For example, in a December 2001 report of medical history, when asked if you ever had or do you have recurrent back pain or any back problem, the veteran responded in the affirmative. The veteran explained that, occasionally, he suffered low back pain that lasted for four to five days since 1998. [The Board notes that, although the veteran wrote his explanation in Spanish, it was translated to English by a VA physician in a November 2004 VA examination report associated with the claims file.]. Although a January 2003 National Guard annual medical examination was negative for any spine condition; a January 2003 National Guard annual medical certification report reveals that, due to the veteran's recurrent low back pain, he was given a P2 profile under the "L." Such report reflects that the veteran had a low back condition prior to his third period of active service beginning in February 2003. Furthermore, in the report of November 2004 VA examination, the examining physician opined that, in consideration of the evidence, the veteran had a preexisting back condition prior to his service in 2003. Thus, although no low back condition was diagnosed prior to the veteran's entry into active duty in February 2003, the pre-active service medical records from January 2003 clearly and unmistakably show that the veteran suffered from a low back condition prior to his third period of active service. Thus, the first prong of the standard for rebutting the presumption of soundness has been met. As for the second prong, the in-service treatment records confirm the veteran's contention that he injured his back on one occasion during active service in June 2003, and note his complaints of recurrent back pain. However, the veteran previously had complaints of recurrent back pain, noted above, and the veteran was not diagnosed with a low back condition during his third period of active service. In this regard, a June 2003 service treatment record and an August 2003 line of duty determination report reflect that the veteran was then working in a warehouse, using a forklift to move heavy boxes when one of the boxes moved; the veteran attempted to stop the box from falling; however, the box was too heavy and the veteran fell whereupon he felt a sharp pain in his lower back. Several days later, the veteran was seen at the Rodriquez Army Health Clinic with complaints of continued back pain. He was assessed with musculoskeletal pain in the flank and was prescribed Naprosin. There are no additional service treatment records reflecting any complaints, findings, or diagnosis pertinent to back pain. Furthermore, in an August 2003 report of medical assessment, in response to questions whether he had any illness or injuries that caused him to miss duty for longer than three days, if he suffered from any injury or illness while on active duty for which he did not seek medical care, or if had any conditions which currently limited his ability to work, the veteran responded in the negative. He did report that he had questions or concerns pertaining to his health in regard to back pain. In an August 2003 post-deployment health assessment, the veteran also reported concerns regarding recurrent back pain, which he indicated developed during this deployment. The examiner who reviewed his responses and assessed the veteran noted that a referral for further evaluation was not indicated. Post-service medical records reflect that a VA spine examination was performed in May 2004, to include an MRI, which resulted in a diagnosis of early degenerative disc disease at L4-L5 with a central posterior protrusion consistent with central disc herniation, L3-L4 degenerative disc disease, and lumbar myositis. An August 2006 private medical record reflects that the veteran was diagnosed with right L5 nerve root irritability and bilateral S1 radiculopathy, worse on the right side. No etiology opinion was provided. An October 2006 MRI report of the lumbar spine reflects an impression of multilevel multifactorial degenerative disc changes and straightening of lumbar lordosis, which may be secondary to muscle spasm versus positioning. The primary diagnostic code noted minor abnormality. No etiology opinion was provided. There is no medical indication that the veteran's low back condition was aggravated by service. Moreover, the only medical opinion that explicitly address the etiology of a currently diagnosed low back disability s weighs against the claim. After reviewing the claims file and noting the veteran's reports of medical history, to include back pain, prior to, during, and after his third period of active service, including the veteran's December 2001 report that he had previously had recurrent back pain or any back problems, the Novemberr 2004 VA spine examiner opined that the veteran's lumbar discogenic disease confirmed by MRI (central disc herniation) with lumbar myositis was not caused by or the result of the in-service accident in June 2003. As the November 2004 VA examiner explained his opinion based on his review of the veteran's claims file, service treatment records, and a very detailed May 2004 VA spine examination report, the Board finds that this opinion-which weighs against any finding of in-service incurrence or aggravation- is probative of the medical nexus question. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). Significantly, neither the veteran nor his representative has presented, identified, or even alluded to the existence of any contrary medical opinion to support the veteran's claim that any currently diagnosed low back disability is, in fact, medically related to service-on the basis of in-service incurrence or aggravation. In addition to the medical evidence, the Board has carefully considered the written statements of the veteran (and those provided, on his behalf, by a fellow service member and his representative) indicating that his current low back conditions, including pain, are related to service. The Board notes that a layperson is competentto report on matters observed or within his or her personal See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, to whatever extent the veteran-and his fellow service member and his representative, through arguments made on the veteran's behalf-attempt to support the claim on the basis of assertions, alone, the Board points out that matter the matter of etiology (or medical relationship) upon which this case turns is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As laypersons not shown to have appropriate medical training and expertise to competently render a probative (i.e., persuasive) opinion on a medical matter, none of the above-named individuals can provide persuasive evidence on the medical nexus question. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. Under these circumstances, the Board finds that the claim for service connection for lumbar discogenic disease, L3-L4 early degenerative disc changes and L4-L5 with lumbar myositis, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the only competent opinion on the question of medical nexus weighs against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for lumbar discogenic disease, L3-L4 early degenerative disc changes and L4-L5 with lumbar myositis, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs