Citation Nr: 0814216 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 06-14 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The veteran served on active duty from May 1983 to December 1991. This case comes to the Board of Veterans' Appeals (Board) from a rating decision of the Waco, Texas, Regional Office (RO). FINDING OF FACT The evidence does not support the conclusion that the claimed low back disability is related to the veteran's active service. CONCLUSION OF LAW A low back disability was not incurred or aggravated during active duty service. 38 U.S.C.A. §§ 1110, 1131, 1113, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay 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 in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in February 2005 that fully addressed all four notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. There is no allegation from the veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in March 2006 the RO provided the veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records and service medical records. The veteran has submitted one private medical opinion. In addition, he was afforded a VA medical examination in February 2006. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection The veteran claims that his current low back disability was incurred during service wherein the veteran was diagnosed with a mild muscle strain of the back. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Further, service connection may also 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Moreover, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran's service medical records indicate that he sought treatment for low back pain in August 1985. This is the first mention of any complaints regarding the veteran's back in the claims file. The veteran was diagnosed with a mild muscle strain of the back. The veteran claims that he has had back pain ever since that initial onset in August 1985. However, at a routine physical examination in November 1988, the veteran's spine was reported as normal. Later, in June 1991, the veteran reported a medical history negative for recurrent back pain and his spine was once again normal on physical examination. Finally, at separation in November 1991, the veteran's spine was again reported as normal after physical examination and the veteran again reported a negative history of recurrent back pain. Thereafter, the veteran claims to have sought ongoing treatment for back pain since separation from service but these records have not successfully been made a part of the claims file. A private physician examined the veteran in February 2005, more than 10 years after the veteran's discharge from service, and diagnosed the veteran as having chronic low back pain that was related to service with probably lumbar facet syndrome. This examiner based the positive nexus opinion on the veteran's medical history, as reported by the veteran, that he initially injured his back while doing heavy lifting in service and had been treated for ongoing low back pain since that incident. A VA examination was conducted in February 2006. At that time, the examiner diagnosed the veteran with mechanical low back pain secondary to facet arthropathy that was likely due to poor conditioning as he has a protuberant abdomen and he is overweight. Upon examination, including x-ray examination, the veteran had a normal lordotic curvature, no scoliosis, no acute/recent or healing/unhealed fractures, no disc space narrowing although had small spurs involving the anterior margins of the second and fourth lumbar vertebral bodies. The veteran also had some narrowing of the L5-S1 facet joint. Nevertheless, the examiner found that the veteran did not have additional limitation following repetitive use other than increased pain, and no additional limitation with flare-ups. No incapacitating episodes were identified in the prior 12 months. Furthermore, the veteran was found to have forward flexion to 90 degrees (with pain from 60 to 90), extension to 30 degrees (with no pain), and bilateral rotation and flexion to 30 degrees (with pain at 30 degrees with right lateral rotation). This examiner fully reviewed the veteran's claims file, including the veteran's service medical records and the private medical examination and opinion. In making his opinion, the examiner cited the lack of complaints of back pain for the remainder of service after the initial diagnosis of mild muscle strain of the back and concluded that the August 1985 incident of back pain was acute and transitory rather than chronic in nature. As the VA examiner had the benefit of reviewing all of the veteran's service medical records and not only the veteran's correctly cited history of initial back muscle strain in service and the veteran's own opinion, in using that information, the Board finds that the February 2006 VA examination report has more probative value than that of the private examiner. As such, the February 2006 VA examiner's opinion will be given more weight by the Board. The Board has also considered the statements made by the veteran that he has had back pain since the initial muscle strain in service. In this vein, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board, however, finds that the veteran's reported history of continued back pain since active service is inconsistent with other evidence of record. Indeed, while he stated that he had back pain since August 1985, the three medical examinations in service after that date were all absent of any complaints of back pain. Moreover, the post-service evidence does not reflect treatment referable to back pain for decades following active service. Therefore, the Board finds the statements of back pain since service of less probative value on the issue of continuity. Next service connection may be granted when a medical nexus is established between the disorder and active duty. As discussed above, while the private medical examiner established that the veteran's back pain was related to service in his February 2005 opinion, he did so without the benefit of the claims file and only based on the veteran's medical history as related by the veteran. Whereas, the VA examiner's opinion cited the entire record in giving a rational for his negative nexus opinion. The Board has also considered the veteran's statements asserting a nexus relationship between his back pain in service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno v. Brown, 6 Vet. App. at 470. As a lay person, however, he is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER Service connection for a low back disability is denied. ____________________________________________ C. TRUEBA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs