Citation Nr: 1007177 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-02 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active service from October 2001 to October 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefit sought on appeal. Subsequent to the May 2008 Supplemental Statement of the Case (SSOC), the Veteran submitted an additional VA medical record. The Veteran did not provide a waiver of RO consideration of the evidence. See 38 C.F.R. § 20.1304(c) (2009). The VA medical record, in the form of a January 2009 lumbar spine MRI (magnetic resonance imaging) report, showed clinical findings essentially duplicative of those shown as part of a March 2008 private chiropractic treatment record that was considered by the RO. Consequently, the Board finds that the January 2009 VA MRI record is duplicative and cumulative of the medical evidence considered by the RO. Therefore, a waiver of initial consideration by the agency of original jurisdiction is not necessary. See 38 C.F.R. § 20.1304 (2009). FINDING OF FACT The evidence of record does not show a current back disorder related to active service. CONCLUSION OF LAW A back disorder was not incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters VA's Duties To Notify And Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). 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; and (3) that the claimant is expected to provide. 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 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. The RO's January 2007 letter advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the Dingess requirements, the Veteran was provided notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal as part of a March 2006 RO letter. Both of those letters were sent to the Veteran prior to the initial decision on the claim in March 2007. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Finally, the duty to assist the appellant has also been satisfied in this case. The Veteran's service treatment records and all identified and available post-service VA and private medical records are in the claims file and were reviewed by both the RO and the Board in connection with his claim. The appellant has not informed VA of any other existing VA medical records that may be helpful in the adjudication of his claim. As such, VA is not on notice of any evidence needed to decide the claim which has not been obtained. The Board acknowledges that the Veteran has not been afforded a VA examination in connection with his current claim for service connection. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board concludes that an examination is not needed in this case because the Veteran's service treatment records are absent for evidence of findings pertaining to his back or spine, and his post-service medical records are absent for evidence of complaints of back pain until a couple of years after the Veteran's separation from service. As such, there was no event, injury, or disease in service to which a current diagnosis could be related. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the Veteran's claim because there was no evidence, other than his own lay assertion, that "'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms"). In addition, post-service medical records include no indication of a possible causal connection between the Veteran's lumbar spine-related clinical findings -- discussed below -- and his military service. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003) (noting that the Board has no obligation to obtain a medical opinion when there is no competent evidence that the appellant's disability or symptoms are associated with his service). Accordingly, it is not necessary to obtain a medical examination or medical opinion in order to decide the claim in this case. 38 C.F.R. § 3.159(c)(4)(i), Duenas. For these reasons, the Board concludes that VA has fulfilled the duty to assist the appellant in this case. Factual Background The Veteran has claimed that he had begun to have back problems that he believed were due to his military service. See January 2007 VA Form 21-4138. In his April 2007 notice of disagreement (NOD), the Veteran contended that his claimed back disorder was directly related to the recurrent back condition that was listed on his separation examination. As noted above, the appellant served on active duty from October 2001 to October 2004. His service treatment records are negative for any complaints, treatment, or diagnosis of a back disorder. In particular, his October 2001 enlistment examination as well as his August 2004 separation examination found his spine to be normal. Significantly, a report of medical history completed by the Veteran in the course of his August 2004 separation examination shows that he denied having, or ever having, "[r]ecurrent back pain or any back problem." These reports specifically contrast the Veteran's above-mentioned claim, raised as part of his NOD, which alleged that he had a recurrent back condition while in the military. Additionally, he failed to mention having incurred any back-related injury. Post-service private medical records have been associated with the Veteran's claim folder. These records are dated from 2006 to 2009 and include both VA and private medical records. In particular, a December 2006 VA physician emergency department note shows that the Veteran was seen for complaints of back pain beginning two to three days earlier. A diagnosis of low back pain, probably muscular, was rendered. A January 2007 triage note from Fort Leonardwood also shows a diagnosis of back pain. The Veteran complained of having a history of back pain for months, which had been exacerbated by training the day before. Private chiropractic treatment records are also on file. These records, which are all dated in March 2008, show that the Veteran was seen five times over the course of ten days for complaints of acute bilateral low back pain. On four occasions, the Veteran's pain complaints decreased after treatment. A review of the above-mentioned January 2009 VA MRI report includes several lumbar spine-related diagnoses, including minimal retrolisthesis, central disc extrusion, posterior annular tear, mild annular bulge, and bilateral dorsal synovial cysts. Law and Analysis The Veteran claims that he has a back disorder as a direct result of his military service. The Board has reviewed all the evidence in the Veteran's claims file, which includes his written contentions, service treatment records, and VA and private medical evidence. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claim file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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 C.F.R. § 3.303(d). Pain alone is not a disease or injury, and it is not a disability for purposes of VA compensation. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part and remanded on other grounds sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001) In sum, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the grant of service connection for the Veteran's claim. The service treatment records are completely negative, contrary to the Veteran's April 2007 assertion discussed above. for any clinical findings pertaining to his back or spine. Moreover, the Veteran did not seek treatment immediately following his separation from service or for a couple years thereafter. Subsequent to service, the Veteran initially sought service connection for his claimed disorder in January 2007. See VA Form 21-4138. The only evidence linking the Veteran's claimed back disorder to his service is his own unspecific lay contentions. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). However, while the Veteran can claim to experience back pain, the Veteran, as a lay person, is not competent to testify that his currently claimed back disorder was caused by his military service. In fact, he has not even attributed his current back problems to a particular in-service injury. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). There is no indication in the record that the Veteran is a physician or other health care professional. Therefore, as a layperson, he is not competent to provide evidence that requires medical knowledge because he lacks the requisite professional medical training, certification and expertise to present opinions regarding diagnosis and etiology. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Voerth v. West, 13 Vet. App. 117, 119 (1999) (unsupported by medical evidence, a claimant's personal belief, no matter how sincere, is not probative of a nexus to service). Even if the Veteran's contentions could be read as claiming continuity of symptomatology of back problems since service, such history is substantially rebutted by the absence of back symptoms in service, including his own denial of back symptoms and normal clinical findings at separation from service. See Buchanan. Therefore, the Veteran's statements regarding etiology do not constitute competent medical evidence on which the Board can make a service connection determination. Thus, elements (2) and (3), as set out in the McLendon discussion above, have not been met. Hence, VA is not required to provide an examination or medical opinion in connection with this claim. In summary, the record contains no competent medical evidence linking a current back disorder to the Veteran's military service. Thus, after considering all the evidence under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to service connection for a back disorder because the competent medical evidence does not reveal a nexus between the Veteran's military service and his claimed disorder. Absent such a nexus, service connection may not be granted. 38 C.F.R. § 3.303. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim for service connection. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that 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. 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 latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See 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 claim is denied. ORDER Entitlement to service connection for back disorder is denied. ____________________________________________ JESSICA J. WILLS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs