Citation Nr: 0814507 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 04-38 250A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for degenerative disc disease of the lumbar spine, to include as secondary to a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD F. Fuller, Associate Counsel INTRODUCTION The veteran served on active duty from June 1980 to June 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran presented testimony at a Travel Board Hearing chaired by the undersigned Veterans Law Judge in March 2008. A transcript of the hearing is associated with the veteran's claims folder. FINDING OF FACT Degenerative disc disease of the lumbar spine is not etiologically related to service or service-connected disability. CONCLUSION OF LAW Degenerative disc disease of the lumbar spine was not incurred or aggravated during active duty, its incurrence or aggravation during such service may not be presumed, and it is not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303 (2007). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). Direct service connection may not be granted without medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non service-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-514 (1998). Analysis The veteran contends that his current low back disability developed during active military service or secondary to his service-connected right knee disability. Specifically, he states that he sustained a knee injury in service which required him to undergo surgery, and that during his surgery for his knee injury, he was required to have a spinal tap and that excessive leakage from the spinal tap caused him to later develop a low back disability. The veteran also claims that he sought treatment for his back while still in service and that he reported it during his separation examination. See March 2008 Travel Board Hearing transcript and October 2006 statement. The medical evidence of record indicates that that the veteran does have a currently diagnosed low back disability. VA outpatient treatment records show that the veteran was seen in August 2003 and reported onset of low back pain in November 2002. X-rays showed no spondylolisthesis, no vertebral body compression fracture, and no significant degenerative changes. In October 2003, the veteran complained of discomfort in the low back and right leg. Some straightening of the lordic curve was noted and the impression was low back pain with sciatica right leg. During a January 2004 VA examination, the veteran reported developing severe back pain two and a half years prior and denied any trauma to the back. He was diagnosed at that time with degenerative disc disease of the lumbar spine. MRI dated March 2004 shows very mild degenerative disease of the lumbar spine, with mild central spinal stenosis at L3-4, resulting from a broad based bulging disc and facet and ligamentum hypertrophy with no evidence of nerve root impingement. However, there is no competent evidence that degenerative disc disease or any other back disability was diagnosed in service and no competent evidence indicates that any such disorder had its onset in service or within the one- year presumptive period following his discharge. Service medical records show complaints of low back pain in March 1982. Examination revealed good range of motion with bending, limited bending backward and towards the right side, and no tenderness upon palpation. The assessment was paraspinal muscle spasm and the veteran was treated with Robaxin and heat. The service medical records are negative for any further findings, treatment or diagnosis related to back pain, a back condition or injury. Furthermore, at the time of his separation examination in May 1984, the veteran's spine was evaluated as normal. As noted above, the earliest medical evidence of record showing the presence of a back disability consists of the report from the January 2004 VA examination containing a diagnosis of degenerative disc disease of the lumbar spine. The record does not contain competent medical evidence linking any current low back disability to disease or injury during the veteran's active military service. In addition, the competent medical evidence of record does not show that the veteran's low back disability was caused, in whole or in part, by the veteran's service-connected right knee disability. The January 2004 VA examiner indicated that he was unable to state with any certainty whether or not the veteran's knee problem had caused the onset of his back pain. The June 2005 VA examiner indicated that the veteran's back examination could not be reliably performed due to the veteran's extreme reactions of pains and therefore, no opinion regarding etiology of his back disability was rendered. However, in a July 2005 VA opinion, the physician opined that it is not as likely or less likely than not that the veteran's back symptoms are related to service. In rendering this opinion, the physician noted that he had reviewed the report of the veteran's MRI and the results of the veteran's physical examination conducted in June 2005, approximately 16 months after the MRI was performed. He also noted the veteran's extreme reaction to even light pressure on his body triggering excruciating types of pains that seemed to be out of proportion, and considered the veteran's conflicting history regarding the onset of his symptoms. In support of his claim, the veteran has submitted August 2005 and August 2006 statements from his private physician J. Forstner, MD who claims that he has treated the veteran for back and knee pain since the mid to late 1980's, and that the veteran's back disorder more likely than not developed from a leaky spinal tap conducted in conjunction with treatment for a knee injury in service, and that therefore, his back pain is likely service-connected. The Board finds this medical opinion to be of minimal probative value because the physician did not provide a rationale for his opinion. Nor did he indicate what records, if any, he had reviewed. Because Dr. Forstner did not include the basis for his opinion, the Board is unable to evaluate it and to assign it more than minimal probative weight. The veteran has also submitted November 2006 statements from his sisters, who both contend that the veteran suffers from severe back and leg pain and that this pain started after an injury in service in the 1980's. Although the veteran's sisters are competent to report on his symptoms that they have observed, their opinions are not competent evidence of the alleged nexus since as laypersons, they do not have the medical expertise to render an opinion concerning medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The preponderance of the evidence is against the claim. Accordingly, the claim should be denied. 38 U.S.C.A. § 5107 (West 2002). Duties to Notify and to Assist Claimants VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper 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 in accordance with 38 C.F.R. § 3.159(b)(1). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that in September 2003, prior to the initial adjudication of the claim, and in February 2005, the veteran was provided with the notice required by section 5103(a), to include notice that he submit any pertinent evidence in his possession. The Board notes that, even though the letters requested a response within 60 days, they also expressly notified the veteran that he had one year to submit the requested information and/or evidence, in compliance with 38 U.S.C.A. § 5103(b) (evidence must be received by the Secretary within one year from the date notice is sent). The veteran was provided the specific notice required by Dingess v. Nicholson, 19 Vet. App. 473 (2006) (as the degree of disability and effective date of the disability are part of a claim for service connection, VA has a duty to notify claimants of the evidence needed to prove those parts of the claim) in March 2006. Finally, the Board notes that veteran's service medical records and all other pertinent available records have been obtained in this case. In addition, the veteran has been afforded appropriate VA examinations. Neither the veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the denied claim. The Board is also unaware of any such outstanding evidence. In sum, the Board is satisfied that any defects in the duties to notify and assist the claimant by the originating agency were not prejudicial to the veteran. ORDER Service connection for degenerative disc disease of the lumbar spine is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs