Citation Nr: 0815148 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 04-34 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fargo, North Dakota THE ISSUE Entitlement to service connection for low back strain. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Lawrence W. Klute, Associate Counsel INTRODUCTION The veteran served on active duty from June 1976 to November 1979. Procedural history This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 2002 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the veteran's claims for service connection. The veteran disagreed and timely appealed. During the pendency of the appeal the veteran changed residency, and original jurisdiction now resides in the VA Regional Office in Fargo, North Dakota. In September 2004, the veteran requested a hearing before a local hearing officer. The record indicates that the veteran received notice in May 2005 of a local hearing scheduled for June 7, 2005 at the RO. The veteran failed to appear at that hearing. In October 2004, the veteran requested a videoconference hearing before a Veterans Law Judge (VLJ). The record includes a July 2005 notice of a hearing scheduled for August 30, 2005. The veteran that failed to appear for that hearing. In October 2007, the Board remanded the issue of entitlement to service connection for low back strain in order to obtain further development of that issue. As will be discussed below, that has been accomplished. The case has now been returned to the Board for further consideration of the appeal. Matters not on appeal By its October 2007 decision, the Board also denied entitlement to service connection for Hepatitis C; hemangioma/epidermoid of the parietal skull; bilateral median nerve neuropathy and bilateral ulnar nerve neuropathy; and a right shoulder dislocation. Those issues are no longer subject of this appeal, and there will be no further discussion of them herein. FINDING OF FACT The medical evidence of record demonstrates that the veteran's currently diagnosed low back disability is not attributable to his period of active service. CONCLUSION OF LAW Low back strain was not incurred in or aggravated by the veteran's military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran seeks service connection for low back strain. In the interest of clarity, the Board will first discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall considerations As was alluded to in the Introduction, in October 2007 the Board remanded the issue of entitlement to service connection for low back pain in order to obtain review of the claims file and a medical opinion as to whether it is as likely as not that any current low back condition was related to the veteran's active duty military service. The veteran's claim was then to be readjudicated by the agency of original jurisdiction. Review of the file reveals that the requested file review and opinion was done in November 2007. A supplemental statement of the case was issued by the agency of original jurisdiction in January 2008. Thus, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (the VCAA). The VCAA enhanced VA's duty to notify a claimant about the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefined VA's obligations with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2007). The Board has carefully considered the provisions of the VCAA and the implementing regulations in light of the record on appeal, and for reasons expressed immediately below finds that the development of the issue has proceeded in accordance with the provisions of the law and regulations. Standard of review In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After careful review, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. The veteran was informed letters dated December 2001 and September 2004 that to support his claim, the evidence must show: an injury in military service or a disease that began in or was made worse during military service, or that there was an event in service which caused injury or disease; a current physical or mental disability; a relationship between the current disability and an injury, disease, or event in military service. The veteran was further informed in both letters that VA would provide a medical examination if it was deemed necessary to substantiate his claim, and that VA would obtain records such as records held by Federal agencies, including service records and VA medical records, employment records, and private medical records so long as he provided sufficient information to allow VA to obtain them. The Board also notes that the veteran was asked in the December 2001 letter to tell VA about "any additional information or evidence that you want us to try to get for you." The September 2004 letter asked the following: "If there is any other evidence or information that you think will support your claim, please let us know. If you have any evidence in your possession that pertains to your claim, please send it to us." This complies with the "give us everything you've got" requirements of 38 C.F.R. § 3.159(b) in that the veteran was informed that he could submit or identify evidence other than what was specifically requested by the RO. In short, the record indicates that the veteran received appropriate notice under 38 U.S.C.A. § 5103 and Quartuccio. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (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. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for service connection, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The veteran was provided specific notice of the Dingess decision in an October 2007 letter from the AMC, which detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The veteran was also advised in the letter as to examples of evidence that would be pertinent to a disability rating, such as on-going treatment records, recent Social Security determinations and statements from employers as to job performance and time lost due to service-connected disabilities. With respect to effective date, the October 2007 letter instructed the veteran that two factors were relevant in determining effective dates of increased rating claims: when the claim was received; and when the evidence "shows a level of disability that supports a certain rating under the rating schedule or other applicable standards." The veteran was also advised in the letter as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the veteran may not have submitted and reports of treatment while attending training in the Guard or Reserve. Accordingly, the veteran has received proper notice as to disability rating and effective date pursuant to the Court's Dingess determination. The Board additionally observes that inasmuch as the veteran's claim of entitlement to service connection for low back strain is being denied, no disability rating and effective date will be assigned. Therefore, compliance with the notice requirements of Dingess has become moot. The Board further notes that the veteran's representative has not alleged that the veteran has received inadequate VCAA notice. The veteran is obviously aware of what is required of him and of VA. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate claims for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate the claim now under consideration and that there is no reasonable possibility that further assistance would aid in substantiating it. Specifically, the RO has obtained the veteran's service medical records and reports of VA treatment of the veteran, private medical records, and Social Security Administration Records (SSA). Additionally, the veteran was provided with VA examinations in November 2001, February and December 2002, and April and July 2004. An additional VA review of the veteran's claims file and nexus opinion relating to the issue currently under consideration was obtained during November 2007, pursuant to the Board's remand instructions. Neither the veteran nor his representative has identified any further evidence. Accordingly, the Board finds that under the circumstances of this case as they pertain to the issue being decided, the VA has satisfied the notification and duty to assist provisions of the law and that no further actions pursuant to the VCAA need be undertaken on the veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). The veteran has been ably represented by his service organization, which has submitted a formal brief as recently as April 2008. As noted in the Introduction, the veteran was scheduled for two hearings, a local hearing and a Travel Board hearing. He failed without explanation to report for either hearing. The Board will therefore proceed to a decision on the merits of the issue on appeal.. Relevant law and regulations Service connection - in general A disability may be service-connected if it results from an injury or disease incurred in, or aggravated by, military service. See 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). In order to establish service connection for the claimed disorder, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Continuity of symptomatology The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. See 38 C.F.R. § 3.303(b) (2007). Analysis The Board will evaluate the claim along the lines set out in Hickson. With respect to element (1), current disability, the record includes a November 2000 MRI report of the veteran's lumbar spine which concluded that there was a "mild old wedge deformity of L1 with prominent old Schmorl's node . . . findings could reflect old trauma; mild changes of spondylosis throughout the lumbar spine." Although not specifically referring to lumbar strain, there is no question that the medical evidence demonstrates a current back disability. Therefore, Hickson element (1) is met. With regard to element (2), in-service disease or injury, the veteran's service medical records indicate that he complained of and was treated for a low back strain in March 1977. Entries on March 14 and 16, 1977 indicate that the veteran complained of lower back pain after lifting a "heavy object on top of locker when he strained his back." Thus, Hickson element (2) is also met. [The Board observes in passing that in a September 2004 statement the veteran contended that he injured his back in service when he jumped out of a 2.5 ton truck. As was noted by the November 2007 VA reviewer, there is no documentation of such injury in the veteran's service medical records.] As concerns Hickson element (3), medical evidence of a nexus between service and the current disability, a VA physician, Dr. R.J., reviewed the veteran's claims file in November 2007. Dr. R.J. concluded that "it is far less than likely that the origin of the veteran's lower back condition was in service." The reviewer noted that although the veteran had been treated for low back muscle strain in service during 1977, his May 1979 separation physical made no mention of any back problems, and the review of systems revealed that "no" was checked on the "recurrent back pain" item. It was further noted that post-service records showed a motor vehicle accident during May 1980. There was also mention of a work injury that occurred during February 1988, but the details surrounding the injury were not documented. There was no diagnosis of a lower back problem until a magnetic resonance imaging (MRI) study of the lumbosacral spine in November 2000 showed mild arthritis, a left paracentral disc herniation with no impingement on the nerve root, and an old wedge compression deformity at L1. There is no competent medical evidence to the contrary. In that connection, the Board observes that the service medical records show no follow-up to the veteran's March 1977 back complaints and, as was indicated by the examiner, his separation physical examination in May 1979 was pertinently negative. The veteran did not seek treatment for any lower back disorder until some 21 years after service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability]. Although the veteran himself asserts that his difficulties with his lower back can be attributed to his military service, the record does not establish that he has the medical training necessary to offer competent opinions on matters of medical diagnosis or etiology. See, e.g., Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (a lay person is not competent to offer opinions that require medical knowledge). The veteran appears to be contending that his back problems started in service and continued thereafter. The Board is of course aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. However, the veteran has not submitted evidence of continuous back problems in service, and indeed as discussed above he did not seek treatment for back problems until over two decades after service. Because the record as a whole demonstrates that the veteran did not evidence back problems continuously since service, the Board finds that the recent assertions of the veteran to the contrary lacks credibility and probative value. Moreover, supporting medical evidence is required. See Voerth v. West, 13 Vet. App. 117, 120-1 (1999) [there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent]. Such evidence is lacking in this case. Thus, the Board finds that Hickson element (3), medical nexus, is not satisfied, and on this basis the claim of service connection for low back strain fails. In summary, for reasons and bases expressed above, the Board concludes that a preponderance of the evidence is against the veteran's claim. The benefit sought on appeal is accordingly denied. ORDER Service connection for low back strain is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs