Citation Nr: 0812363 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 03-08 596A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The veteran had active military service from March 1974 to April 1975. This appeal arises before the Board of Veterans' Appeals (Board) from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which denied service connection for a back condition. The veteran's claim was remanded by the Board in July 2004, February 2006, and October 2006. In the July 2004 decision, the Board denied service connection for hepatitis C and for an acquired psychiatric disorder. In the February 2006 decision, the Board denied a rating higher than 10 percent for a skin condition. Hence, the aforementioned three issues are not currently before the Board. FINDINGS OF FACT The veteran's current low back disability is not the result of a disease or injury in service, including service connected scars, and was not aggravated by a service connected disability. CONCLUSION OF LAW A back disability was not incurred in or aggravated by active service, including a service connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303(a), 3.310 (2006 & 2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (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. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2007). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the veteran was provided with a preadjudication December 2002 VCAA letter which told him what evidence was needed to substantiate his claim for service connection for a back disability as secondary to his service connected scars. The veteran was also informed that VA would obtain service records, VA records, and records from other Federal agencies, and that with his authorization VA would obtain private medical records on his behalf or he could submit the records. The veteran was also provided with a second VCAA letter in July 2004 after the initial adjudication of his appeal. This letter again told the veteran what evidence was needed to substantiate a claim for service connection for a back disability on a direct and secondary basis, and who was responsible for obtaining evidence from various sources. This letter also notified the veteran that he should submit any evidence in his possession that pertained to his claim. A March 2006 letter notified the veteran that a disability rating and effective date would be assigned if service connection was established. As portions of the notices came after the initial adjudication of the claim, the timing of the notices did not comply with the requirement that the notice must precede the adjudication. The timing deficiency was remedied by the fact that the veteran's claim was readjudicated by the RO in December 2007, after proper VCAA notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (2006). Therefore, the duty to notify the veteran has been met. The duty to assist the veteran has been met. All VA treatment records have been obtained. Records have been requested and received from the Social Security Administration (SSA). The veteran has been afforded a VA examination, and necessary medical opinions have been obtained. An opinion has not been obtained as to whether a current back disability was directly incurred in service. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The veteran's reports of a constinuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The veteran has not reported a continuity of symptomatology and there is no other competent evidence that the current back disability might be directly related to a disease or injury in service. There is no indication that there is any outstanding evidence that must be obtained prior to reaching a decision in this case. Service Connection The veteran contends that he has developed a back disability as a result of his service connected scars of the neck and left leg. He argues that the scars of the left leg became painful and altered his gait, which resulted in the development of his back disability. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Secondary service connection may be established for a nonservice-connected disability which is aggravated by a service connected disability. In this instance, the veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended the provisions of 38 C.F.R. § 3.310 to incorporate the Court's holding in Allen, except that under the new version of the regulation, VA will not concede aggravation unless there is medical evidence created prior to the aggravation that shows a baseline level of aggravation prior to the aggravation. 38 C.F.R. § 3.310(b) (2007). A new law or regulation applies, if at all, only to the period beginning with the effective date of the new law or regulation. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In VAOPGCPREC 7-2003, VA's General Counsel held that when a new statute is enacted or a new regulation is issued while a claim is pending, VA must first determine whether the statute or regulation identifies the types of claims to which it applies. If the statute or regulation is silent, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely "retroactive effects." If applying the new provision would produce such "retroactive effects," VA ordinarily should not apply the new provision to the claim. If applying the new provision would not produce "retroactive effects," VA ordinarily must apply the new provision. A new law or regulation has prohibited "retroactive effects" if it is less favorable to a claimant than the old law or regulation; while a liberalizing law or regulation does not have "retroactive effects." VAOPGCPREC 7-2003; 69 Fed. Reg. 25179 (2004). The General Counsel had previously summarized the proper analysis as follows: First, the Board must determine, on a case-by-case basis, whether the amended regulation is more favorable to the claimant than the prior regulation. Second, if it is more favorable, the Board must, subsequent to the effective date of the liberalizing law under 38 U.S.C. § 5110(g), apply the more favorable provision to the facts of the case, unless the claimant would be prejudiced by the Board's actions in addressing the revised regulation in the first instance. Third, the Board must determine whether the appellant would have received a more favorable outcome, i.e., something more than a denial of benefits, under the prior law and regulation, including for the periods both prior to and after the effective date of the change in law. VAOPGCPREC 3- 2000 (2000); 65 Fed. Reg. 33422(2000) The Federal Ciruit has created a three-part test to determine whether a new law has prohibited retroactive effects: (1) "the nature and extent of the change of the law;" (2) "the degree of connection between the operation of the new rule and a relevant past event;" and (3) "familiar considerations of fair notice, reasonable reliance, and settled expectations." Princess Cruises v. United States, 397 F.3d 1358 (Fed. Cir. 2005). If, under this test, a rule or regulation appears to have a retroactive effect, then the rule or regulation cannot be applied to cases pending at the time of its promulgation. Rodriguez v. Peake, No. 2006-7023 (Fed. Cir. Jan. 7, 2008). The new version of the regulation appears to have retroactive effects in that it imposes additional burdens to establish secondary service connection based on aggravation. Accordingly, the claim will be adjudicated under the old version of the regulation. A secondary service connection requires medical evidence to connect the asserted secondary condition to the service- connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The veteran does not contend and there is no evidence that his back disability is the result of any injury or incident during active service. The service medical records are negative for evidence related to a back disability, and the initial evidence of a back disability is dated more than 20 years after discharge from service. The veteran's only contention from the beginning of his claim has been that he developed a back disability secondary to his service connected scars of the neck and left leg, which are a residual of pyodermia. Extensive private medical records received from the SSA contain a very consistent history demonstrating that the veteran sustained an injury to his back in December 1996 while lifting a garbage can over his head. Records dated from December 1996 show that he sought treatment for his injury almost immediately and that he provided the history of a work injury at that time. The veteran has continued to receive treatment for the residuals of his injury. He underwent a thoracic laminectomy in April 1999, but he continues to experience difficulties. Magnetic resonance imaging studies have also revealed a small left lateral herniated nucleus pulposes at L5 to S1. None of these records contain a medical opinion or any other evidence to suggest that the veteran has developed a back disability secondary an altered gait due to scars, or that an altered gait due to scars has aggravated the disability incurred in 1996. VA medical records also show that the veteran has a back disability, and note the history of an injury at work. The veteran was afforded a VA skin examination in May 2002, and the examiner stated that there was a functional impairment in gait inasmuch as the ankles and lower legs showed active disease. However, the veteran was afforded a VA examination of the spine in March 2006, and the examiner reviewed the medical records contained in the veteran's claims folder. This examiner opined that it was not likely that the veteran's initial skin disability caused or aggravated his low back condition, and that it was not likely the service connected skin condition aggravated or contributed to his chronic low back pain. As a lay person, the veteran is not qualified to express a medical opinion as to the relationship between his service connected scars and a low back disability. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The only medical opinion from a qualified medical professional is the one obtained in March 2006, and that opinion is against a finding that the back disability was caused or aggravated by the service connected scars. The preponderance of the evidence is against the claim, and it must be denied. ORDER Entitlement to service connection for a back disability is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs