Citation Nr: 0812531 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 02-15 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a low back disorder, to include intervertebral disc syndrome. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Andrew Mack, Associate Counsel INTRODUCTION The veteran served on active duty from May 1974 to July 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina that denied the veteran's claim of entitlement to service connection for a low back disorder, to include intervertebral disc syndrome. The veteran perfected a timely appeal of this determination to the Board. The veteran was scheduled for a Board hearing in Washington, DC. However, the record shows that he cancelled that hearing. Thus, his request for a hearing before a member of the Board is considered withdrawn. See 38 C.F.R. § 20.704(e) (2007). This matter was before the Board in December 2003, March 2006, and March 2007, and was remanded each time for further development. FINDINGS OF FACT 1. A low back disorder was not chronic in service, and there was no continuity of low back disorder symptomatology after service. 2. A low back disorder, including intervertebral disc syndrome, is not etiologically related to the veteran's period of service. CONCLUSION OF LAW A low back disorder, to include intervertebral disc syndrome, was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303, 4.14 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and implemented at 38 C.F.R. § 3.159 (2007), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, September 2001, April 2004, July 2004, May 2006, and April 2007 letters to the veteran from the Agency of Original Jurisdiction (AOJ) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection, and the division of responsibility between the veteran and VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007), these letters essentially satisfied the notification requirements of the VCAA by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate his claim; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting that the veteran provide any information or evidence in his possession that pertained to the claim. The Board acknowledges that complete VCAA notice was only provided to the veteran after the initial unfavorable decision in this case, rather than prior to the initial decision as typically required. However, in a case involving the timing of the VCAA notice, the United States Court of Appeals for Veterans Claims (Court) held that the appellant has a right to a VCAA content-complying notice and proper subsequent VA process. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A VCAA-compliant letter was issued to the veteran by April 2007. Thereafter, he was afforded an opportunity to respond, and the AOJ then subsequently reviewed the claim and issued a supplemental statement of the case to the veteran in October 2007. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Pelegrini v. Principi, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Also, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements apply to all five elements of a service connection claim, including the disability rating and effective date of the award. The veteran was provided this notice in October 2007. As such, any notice deficiencies related to the rating or effective date were subsequently remedied. Thus, the Board finds no prejudice to the veteran in processing the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). Second, VA has a duty under the VCAA to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002). In this regard, the following are associated with the claims file: the veteran's service medical records, post-service private medical treatment records, VA medical treatment records, naval hospital records, a VA compensation and pension examination, and written statements from the veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the veteran. The Board therefore determines that VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claim. II. Service Connection The veteran argues that he is entitled to service connection for a low back disorder, including intervertebral disc syndrome. The Board notes that the veteran is currently service-connected for cervical strain/sprain, with minimal degenerative changes of the thoracic spine, and myofascial pain of the left and right scapular regions. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that 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(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). The veteran's service medical records indicate several instances of complaints of and treatment for low back pain. In July 1975, the veteran complained of trauma to the mid back while lifting heavy objects, and pain for one day; it was noted that he complained of lower back pain and denied any radiating pain, and he was diagnosed as having muscle strain. In January 1978, the veteran complained of low back pain for the past two to two and one-half months, and reported that he had had a similar incident 1975; it was noted that he had some tenderness in the L5 to S1 area, had good range of motion forward and laterally, and some strain was noted in backwards range of motion, and the veteran was diagnosed as having muscle strain, back. In August 1979, the veteran reported to sick bay with complaints of lower back pain, and stated that he had heard a snapping sound while running and felt pain when moving his back to different positions. In October 1979, the veteran reported with complaints of right lower back times one day and stated that he had trauma to his back when lifting weights, and he was diagnosed as having muscle strain. On May 1978, October 1982, and February 1987 service examinations, the veteran was noted to have had a normal clinical evaluation of the spine and other musculoskeletal system, and no lower back pain or low back problems were noted. In his May 1978 and October 1982 reports of medical history, the veteran indicated that he did not have and had never had recurrent back pain, and no history of lower back pain was noted by the veteran. Service medical records from July 1985 to April 1994 note frequent treatment for recurring upper back, shoulder, and neck pain, including arthritis, specifically in the T3 to T7 area. In these records, the veteran's back pain was consistently identified as upper back pain. On April 1994 separation examination, the veteran was noted to have had an abnormal evaluation of the spine and other musculoskeletal system. A history of arthralgias of the neck, back and shoulder were noted. The veteran reported a history of recurrent back pain. It was noted hat the veteran had histories of headache pain radiating from upper backache, pain and pressure radiating from upper back, shoulder, and neck pain, that the last visit to the doctor showed signs of some arthritis in the upper spine, and the upper back, neck, and shoulder pain stemmed from an injury while lifting about 70 pounds. There were no notations of low back pain or other low back problems. October 1994 VA x-rays of the lumbar spine revealed that examination was within normal limits, with no degenerative disc disease and no spondylolysis or spondylolisthesis noted, but a small schmorl's node was suspected along the inferior margin of L5. May 1995 VA x-rays of the thoracic spine showed degenerative change in the mid and lower thoracic spine. Naval hospital outpatient records indicate that, in September 1998, the veteran complained of shoulder, scapular, which he had injured in service 16 years prior, and low back and pain in buttocks. In March 1999, it was noted that he veteran had been followed for chronic neck and low back pain for some time. In August 2000, it was noted that, with respect to the veteran's shoulder, he had injured it 18 years before, and that did not heal, and that, with respect to his back, he had low back pain which radiated to his left leg, and his leg felt weak. July 2000 magnetic resonance imaging (MRI) of the lumbar spine indicated disc degeneration at L4-5 and L5-S1, but other discs appeared normal, and there was associated disc protrusion on the left at L5-S1, and right-sided foraminal narrowing due to a disc protrusion on L4-5 on the right. The veteran was diagnosed as having moderate disc protrusion at L5-S1 to the left paracentral region extending to the neuroforamina with neural foraminal narrowing, and foraminal disc bulging at L4-5 on the right. In August 2000, it was noted that the veteran complained of back and left leg pain, that he had been having chronic posterior girdle shoulder pain 18 years before, and that he had had an MRI of his back, which demonstrated herniated disc at L5-S1. It was also noted that he had been having problems with radicular pain into his left leg for about 6 months, and that there was a protrusion at L5-S1 to the left side causing narrowing of the neuroforamina. The veteran was diagnosed as having a herniated nucleus propulsus (HNP) L5-S1. Private medical treatment records, dated from October 2002 to September 2003, indicate the following: that the veteran had chronic back pain and a history of HNP at L5-S1, and continued to experience worsening of lower back pain with radiation down to his left posterior lateral thigh; a diagnosis of herniated L5-S1 disc with foraminal impingement of the left nerve root, which may have accounted for the veteran's symptoms; and January 2003 and October 2003 MRI results indicating mild degenerative changes at L4-5, and a left L5-S1 HNP. The veteran was given a VA examination in June 2004. After examining the veteran and reviewing the claims folder, the VA examiner opined that plain film x-rays showed spondylosis, but that his current low back disorder was not caused by any accident or incident which occurred during military service from May 1974 to July 1994. The VA examiner opined that, rather, his subsequent work as a heating and air technician had been hard work, and that this was much more likely the cause of his current low back condition. On March 2005 VA examination, the VA examiner diagnosed the veteran as having minimal lumbar spine spondylosis with currently normal examination and no evidence of intervertebral disc syndrome. The examiner opined that, given the entries in the service medical record, there was no reason to consider the lumbar spine disorder to be service- connected, either directly or secondary to the cervical spine condition. The June 2004 VA examiner also provided a September 2007 addendum. After reviewing the record, including indications in the service medical records of treatment for low back pain in July 1975, January 1978, August 1979, and October 1979, the VA examiner noted that those entries documented complaints of low back pain with consistent diagnosis of muscle strain and no evidence of chronicity of symptoms. The examiner noted that the discharge examination noted this prior history, but did not describe any physical abnormalities at the time of discharge from service, and that the subsequent VA examinations of 2004 and 2005 noted that the veteran had upper back pain while in service, but that his recent onset of low back pain began about 2000, with an apparent absence of these symptoms prior to that time. The examiner stated that this indicated a lack of continuity of any symptoms that the veteran may have had in the low back while in military service, and that, at the time of the 2004 and 2005 examinations, there was no indication of intervertebral disk syndrome. The VA examiner moreover opined that, given the records, it was less than 50 percent likely that the veteran's current lumbar spine symptoms were related to events or injuries which occurred in military service. The examiner also noted that the veteran worked after leaving service as a heating and air conditioning technician, which involved significant hard work and heavy lifting, and that, as stated in the prior examination, it was the examiner's opinion that the strenuous nature of his occupation was much more likely the cause of his subsequent back symptoms. After a review of the record, the Board finds a preponderance of the evidence to be against the veteran's claim of service connection a low back disorder, including intervertebral disc syndrome. First, a low back disorder, including intervertebral disc syndrome, has not been shown to have been chronic in service. The Board notes that the veteran's service medical records indicate several instances of complaints of and treatment for low back pain. However, the June 2004 VA examiner, in the September 2007 addendum, after reviewing indications in the service medical records of treatment for low back pain in July 1975, January 1978, August 1979, and October 1979, noted that those entries documented complaints of low back pain with consistent diagnoses of muscle strain and no evidence of chronicity of symptoms. Also, the Board notes that the veteran's last complaint of low back pain in the service medical records was in October 1979, and that service medical records do not contain complaints of or treatment for any low back disorder from November 1979 to the veteran's separation from service in April 1994. In this regard, the Board notes that during this time period, from July 1985 to April 1994, service medical records indicate frequent treatment for recurring upper back, shoulder, and neck pain, with no indication of any low back disorder. Furthermore, on April 1994 separation examination, where the veteran was noted too have had an abnormal evaluation of the spine and other musculoskeletal system and history of arthralgias of the neck, back and shoulder, and where the veteran reported a history of recurrent back pain, it was noted that the veteran had histories of headache pain radiating from upper backache, pain and pressure radiating from upper back, shoulder, and neck pain, that the last visit to the doctor showed signs of some arthritis in the upper spine, and that the upper back, neck, and shoulder pain stemmed from an injury while lifting about 70 pounds. However, there were no notations on separation examination of low back pain or other low back problems. Second, the record does not reflect a continuity of symptomatology after service. October 1994 VA x-rays of the lumbar spine revealed that examination was within normal limits, with no degenerative disc disease and no spondylolysis or spondylolisthesis noted. Additionally, there is no indication in the post-service medical record of a low back disorder until September 1998. Third, the competent medical evidence of record does indicate a nexus between a current low back disorder and the veteran's period of service. After reviewing the record, and specifically noting the instances of treatment for low back pain in service, the June 2004 VA examiner, in the September 2007 addendum, opined that those in-service entries documented complaints of low back pain with consistent diagnoses of muscle strain and no evidence of chronicity of symptoms, and that, given the records, it was less than 50 percent likely that the veteran's current lumbar spine symptoms were related to events or injuries which occurred in military service. The examiner opined that the strenuous nature of the veteran's work after leaving service as a heating and air conditioning technician, which involved significant hard work and heavy lifting, was much more likely the cause of his subsequent back symptoms. Moreover, there is no medical opinion or other competent medical evidence of record indicating a nexus between a current low back disorder and the veteran's period of service. Finally, the Board notes the in-service indications of a back disorder involving the thoracic spine, but that the veteran is already service-connected for cervical strain/sprain, with minimal degenerative changes of the thoracic spine, and myofascial pain of the left and right scapular regions. The Board notes the general rule against the "pyramiding" of benefits. See 38 C.F.R. § 4.14; See also Brady v. Brown, 4 Vet. App. 203, 206 (1993). The "critical element" in determining whether a separate disability rating may be assigned for manifestations of the same injury is whether there is overlapping or duplication of symptomatology between or among the disorders. See Esteban v. Brown, 6 Vet. App. at 261. As symptomatology of the veteran's thoracic spine condition is contemplated in his separate rating for cervical strain/sprain, with minimal degenerative changes of the thoracic spine, the Board can not consider such symptomatology in the instant service connection claim for a low back disorder. Accordingly, service connection for a low back disorder, to include intervertebral disc syndrome, is not warranted. In reaching these determinations, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claim, the doctrine is not applicable. ORDER Entitlement to service connection for a low back disorder, to include intervertebral disc syndrome, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs