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the Board is considered withdrawn.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