Citation Nr: 1134813 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 08-19 523A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD David Traskey, Counsel INTRODUCTION The Veteran had active service from March 1977 to October 1977, including service in Korea. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of September 2007 by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). The Veteran requested a Travel Board hearing in connection with the current claim. The hearing was originally scheduled for January 2010, but the Veteran's representative requested in writing that the hearing be rescheduled due to the Veteran's transportation problems. The hearing was subsequently rescheduled for April 2010, but the Veteran failed to report for the hearing and made no attempt to reschedule the hearing for a later date. Thus, the case will be processed as though the hearing request had been withdrawn. 38 C.F.R. § 20.704(d) (2010). The Veteran's claim was previously before the Board in May 2010. At that time, the Board reopened the Veteran's service connection claim for a back disability having found that new and material evidence was submitted. The Board also remanded the claim for additional evidentiary development, to include obtaining outstanding VA treatment records and affording the Veteran a VA examination. The requested development was completed as directed and the Veteran's claim is before the Board for final appellate consideration. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT 1. There is no clear and unmistakable evidence of record to rebut the presumption of soundness at the time of entry to active duty. 2. Although the Veteran was treated in service for subjective complaints of back pain, any currently diagnosed back disability is not attributable to any event, injury, or disease during service, nor was arthritis shown to any degree within one year of discharge. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability are not met and arthritis may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he is entitled to service connection for a back disability. Service connection may be granted for disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a) (2010). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. 3.303(d). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). According to 38 C.F.R. § 3.309(a) (2010), service connection for certain disabilities, including arthritis, may be granted on a presumptive basis if manifested to a compensable degree within one year after separation from service. 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 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the Veteran. Service treatment records (STRs) associated with the claims file revealed that the Veteran was afforded a clinical evaluation and physical examination in March 1977 prior to entering service. The clinical evaluation was normal and no back abnormalities were found. The Veteran described his health as "good," and provided a medical history in which he specifically denied ever having painful joints or recurrent back pain. The Veteran presented to sick call in May 1977 with subjective complaints of back pain. A physical examination was normal. The Veteran had full range of motion and no evidence of spasm was noted. The impression was muscular pain. The Veteran returned to sick call later that same month and reported a two month history of back pain with no history of trauma. In July 1977, the Veteran reported a four month history of back pain ranging from his neck to low back. An examination of the Veteran's neck and back were normal. The impression was subjective low back pain, unknown etiology. A follow-up sick call visit dated that same month found the Veteran with low back and chest wall pain. The Veteran denied a history of trauma or disease. The impression was low back syndrome. The examiner prescribed heat, Parafon Forte, and low back exercises. The Veteran returned to sick call in August 1977 with subjective complaints of continued low back pain. A physical examination was normal. X-rays of the Veteran's back were normal. The Veteran was also afforded a clinical evaluation and physical examination in September 1977 as part of a Chapter 5 separation proceeding. The clinical evaluation was normal and no back abnormalities were found. The Veteran stated that he was in "fine health," and he specifically denied ever having painful joints or recurrent back pain. A notation on the Veteran's DD Form 214 indicated that the Veteran was separated from service under the Expeditious Discharge Program (EDP) for failure to maintain acceptable standards for retention. In November 1977, the Veteran reported to a VA medical facility with subjective complaints of back pain. X-rays of the Veteran's lumbosacral spine showed evidence of minimal chronic scoliosis, primarily in the left lumbar region. No evidence of traumatic changes, arthritis, or degenerative changes, to include degenerative spondylosis, was found. The Veteran was referred to the orthopedic clinic for further evaluation. According to a VA orthopedic clinic note dated December 1977, the Veteran stated that he injured his back in service after falling from gymnastics bars in March 1977. The impression was chronic low back strain by history. A VA Compensation and Pension (C&P) examination was administered in February 1978. The impression was pain on motion with arthropathy and scoliosis of the lumbosacral spine. A lumbosacral spine x-ray taken at a VA medical facility in December 1992 was interpreted to be consistent with muscle spasm, while a follow-up x-ray taken in January 1994 showed partial lumbarization of the first sacral segment and very early degenerative disease. A computed tomography (CT) scan of the lumbosacral spine dated April 1994 revealed evidence of a small paracentral herniated nucleus pulposis at L5-S1 on the left, as well as minimal degenerative changes with facet hypertrophy from L3-S1 with associated congenital stenosis at the canal in these levels. The Veteran sought care at a VA medical facility in September 1999. According to the Veteran, he recently visited the emergency department after lifting a box and reinjuring his back. The Veteran stated that he had always had back pain and that he developed it in the military. He denied traumatic injury. The impression was chronic low back pain, right side. The Veteran presented to a VA medical facility in August 2002 with subjective complaints of back pain. According to the Veteran, he had back pain for over 20 years. This back pain began in service during basic training, but the Veteran denied having in-service injury. Following a physical examination, the Veteran was diagnosed as having arthritis. Associated with the claims file is a July 2003 VA treatment record which diagnosed the Veteran as having "very early" degenerative disease of the lower lumbar spine and significant limitation of range of motion. Magnetic resonance imaging (MRI) performed at a VA medical facility in August 2003 showed evidence of spondylitic changes in the lumbar spine, worse at L5-S1 where there was a herniated disc and possible involvement of the left S1 nerve root. The Veteran reported a 20-year history of chronic low back pain in October 2003. Specifically, he stated that he injured his back in the military and had symptoms ever since that time. A review of systems was positive for arthralgia, edema, and pain in multiple joints. The impression was chronic low back pain secondary to osteoarthritis and degenerative disc disease (DDD). A May 2004 VA treatment record revealed that the Veteran recently underwent lumbar fusion surgery. A physical examination conducted at that time found the Veteran to have chronic lumbar pain of a "multifactorial" origin with evidence of DDD, degenerative joint disease (DJD), herniated disc, myofascial pain syndrome, and obesity. The Veteran returned for additional VA care in August 2005 and reported subjective complaints of chronic low back pain. His past surgical history was significant for spinal fusion. The Veteran also reported worsening back pain following involvement in a motor vehicle accident the previous day. The impression was chronic back pain with acute flare-up after motor vehicle accident. The Veteran was afforded a VA Compensation and Pension (C&P) spine examination in August 2010 in connection with the current claim. The examiner reviewed the claims file and noted that the Veteran reported subjective complaints of back pain without trauma in service on more than one occasion. A lumbar spine x-ray revealed evidence of a previous posterior spinal fixation from L4-S1. Orthopedic hardware and post-surgical changes appeared normal and no significant change was noted from a previous x-ray. The impression was lumbar disc disease, status-post lumbar laminectomy and fusion. The examiner listed "lumbar spine condition / scoliosis" as a problem associated with this diagnosis even though no evidence of scoliosis was found on physical examination. According to the examiner, however, there was no evidence of lumbar scoliosis prior to service, in service, or after service. There was also no evidence of lumbar trauma or injury in service or currently diagnosed scoliosis. The examiner further stated that it was "not likely" that the Veteran's complaints of lumbar pain in service were related to the currently diagnosed back disabilities, including DDD and DJD, or other back disability identified on examination. In support of this conclusion, the examiner noted that the Veteran's STRs were negative for a preexisting back disability. Moreover, the examiner found that there was no evidence of lumbar injury or trauma during service. Rather, the first post-service evidence of lumbar disc disease is dated 1994, nearly 17 years after discharge from service. The examiner also expressed the opinion that it was "not likely" that the lumbar disc disease was related to the Veteran's period of active service, particularly where, as here, there was no evidence of lumbar disc disease in service and no evidence of lumbar trauma or injury in service. Given the evidence of record, the Board finds that the preponderance of the evidence is against a finding of service connection for a back disability in this case. Generally, veterans are presumed to have entered service in sound condition as to their health. See 38 U.S.C.A. § 1111 (West 2002); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of sound condition provides: [E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2010). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby, 1 Vet. App. at 227. According to 38 U.S.C.A. § 1153 (West 2002), a "preexisting injury or disease will be considered to have been aggravated by active . . . service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. Determinations should not be based on medical judgment alone as distinguished from accepted medical principles, or on history alone without regard to clinical factors pertinent to the basic character, origin and development of such injury or disease. They should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof. 38 C.F.R. §§ 3.303(c), 3.304(b) (2010); Crowe v. Brown, 7 Vet. App. 238 (1994). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2010). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles, which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence in the record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b) (2010). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The presumption of soundness applies in this case and it has not been rebutted by the evidence of record. With regard to the issue of whether the Veteran had lumbar scoliosis prior to entering service, the Board finds that the totality of the evidence does not constitute clear and unmistakable evidence of such a conclusion. In this regard, STRs associated with the claims file are negative for a diagnosis of or treatment for a back disability of any kind. The Board is aware, however, that post-service evidence reflected that a "developmental abnormality condition, diagnosed as lumbar scoliosis" was found shortly after separation from service. See September 1978 rating decision. Such findings alone (and without supporting documentation), however, could not have been said to undebatably show that the Veteran's lumbar scoliosis existed prior to his period of active service beginning in March 1977. Since the presumption of soundness applies in this case, the Board will proceed to evaluate the Veteran's claim on a direct basis. Although the Veteran reported subjective complaints of low back pain in service on more than one occasion, a September 1977 separation examination was negative for any back abnormalities. In fact, the Veteran specifically stated that he was in "fine health," and he specifically denied having painful joints or recurrent back pain. Additionally, there is no evidence of arthritis within one year after discharge from service. The Board acknowledges that the Veteran received VA treatment within one month after discharge from service and reported injuring his back in service in March 1977 after falling from the gymnastics bars. Preliminarily, the Board points out that there is no evidence of record to show (or even suggest) such a fall from the gymnastics bars as the Veteran alleges and furthermore, the examiner specifically found no evidence of traumatic changes, arthritis, or degenerative changes, including degenerative spondylosis at that time. The Board is also aware that the Veteran was diagnosed as having scoliosis and arthropathy of the lumbosacral spine in February 1978. Arthropathy is defined as "any joint disease." See Dorland's Illustrated Medical Dictionary 156 (30th Ed. 2003). Neither arthropathy nor scoliosis, however, is arthritis, and the Board finds that the diagnoses of scoliosis and arthropathy as rendered by the VA examiner in February 1978 is entitled to essentially no probative value since these diagnoses were not supported by a rationale of any kind. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that a medical opinion that contains only data and conclusions is not entitled to any probative value; there must be factually accurate, fully articulated, sound reasons for the conclusion). Moreover, the Board notes that x-rays taken in conjunction with the February 1978 VA examination (and after the diagnoses of scoliosis and arthropathy were rendered) were unremarkable. Based on the totality of the evidence, therefore, the Board finds no evidence of arthritis within one year after discharge from service. The Board also points out that while the Veteran in the past had a diagnosis of scoliosis (see November 1977 x-ray report), the objective evidence of record does not show a diagnosis of scoliosis during the claim period. See generally, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim). Instead, the first post-service evidence of the currently diagnosed disabilities is dated 1994, nearly 17 years after discharge from service. In this regard, the United States Court of Appeals for the Federal Circuit has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In this case, the lapse of over a decade between service and the first evidence of the currently diagnosed disabilities, DDD and DJD, is evidence against the Veteran's claim for a back disability. Furthermore, although the Veteran has currently diagnosed back disabilities, including lumbar disc disease, disc herniation, DDD, and DJD, there is no evidence of record, other than the Veteran's statements, linking these disabilities to his period of active service. On the contrary, the August 2010 VA C&P examiner specifically found that it was "not likely" that the Veteran's complaints of lumbar pain in service were related to the currently diagnosed back disabilities, including DDD, DJD, lumbar disc disease, or other back disability identified on examination. In support of this conclusion, the examiner noted that the Veteran's STRs were negative for a preexisting back disability. Moreover, the examiner found that there was no evidence of lumbar injury or trauma during service. Rather, the first post-service evidence of lumbar disc disease is dated 1994, nearly 17 years after discharge from service. The examiner also expressed the opinion that it was "not likely" that the lumbar disc disease was related to the Veteran's period of active service for the same reasons articulated above. In addition, the Board observes that VA examiners in May 2004 and April 2006 attributed the Veteran's back symptoms to several possible etiologies, including obesity and the residuals of his multiple "procedures" in the low back, including a fusion surgery with hardware placement. The Board finds the August 2010 VA C&P examination report, in particular, to be highly probative evidence on the issue of service connection because the examiner provided a rationale and relied on professional training and expertise as well as an interview with and examination of the Veteran and review of the claims file (including pertinent medical history) before reaching these conclusions. Furthermore, the competent, credible, and probative evidence does not otherwise show that the currently diagnosed chronic back disabilities originated in service or were the result of an injury or disease that was incurred in service. The Board is aware, however, that VA examiners indicated in September 1999, August 2002, and October 2003 that the Veteran had longstanding complaints regarding back pain which dated to his time in service. A careful review of these examination reports, however, reflects that this information was provided by the Veteran to the examiner for the purposes of providing a medical history and conducting a physical examination. But, such a statement, without rationale from the examiner, does not demonstrate a relationship between the Veteran's currently diagnosed back disabilities and his period of active service. Moreover, evidence that is simply information recorded by a medical examiner, unenhanced by additional medical comment by that examiner, does not constitute "competent medical evidence" and a bare transcription of lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. See Howell v. Nicholson, 19 Vet. App. 535, 539 (2006); LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Veteran has also submitted statements in support of the current claim in which he attributed his current back disabilities to his period of active service. The United States Court of Appeals for Veterans Claims (Court) has in the past held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also, Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d. 1313, 1315 (Fed. Cir. 2009). The Veteran is capable of observing symptoms such as back pain, and the Board ultimately finds the Veteran's statements in this regard to be credible. But, he is not competent (i.e., professionally qualified) as a lay person to diagnose arthritis, lumbar disc disease, disc herniation, DDD, or DJD or offer an opinion as to the cause of such disabilities, and their relationship to service, if any. Even assuming that the Veteran is competent to offer opinions about diagnosis and etiology, and the Board was to find such statements credible and probative, the Board finds that any such lay statements made by the Veteran in this regard are entitled to limited probative value since he lacks any medical training. See 38 C.F.R. § 3.159(a)(1) (2010) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Moreover, the lay statements of record regarding etiology and continuity of symptoms are outweighed by the Veteran's STRs, which showed no evidence of a back disability at the time of entrance or separation from service, and the August 2010 VA C&P examination report, which was negative to the Veteran's claim. As noted above, the August 2010 VA C&P examination report was highly probative evidence on the issue of service connection because the examiner provided a rationale and relied on professional training and expertise as well as an interview with and examination of the Veteran and review of the claims file (including pertinent medical history) before reaching these conclusions. As an alternative to establishing the second and third prong in Hickson, the Veteran may show a continuity of symptomatology. Continuity of symptomatology may be established if (1) the condition was "noted" during service; (2) there is evidence of post-service continuity of the same symptomatology; and (3) there is medical, or in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); see generally, Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The evidence of record does not establish continuity of symptomatology in this case. The Veteran reported subjective complaints of back pain in service and these complaints were "noted" in the STRs. However, the September 1977 separation examination was negative for any back abnormalities, the Veteran specifically stated that he was in "fine health," and he specifically denied ever having painful joints or recurrent back pain. The Board notes that the Veteran sought VA care for a brief period of time immediately following discharge from service, but there is otherwise a lack of chronicity and continuity of care until the 1990s, several years after discharge from service. In light of the August 2010 VA C&P medical opinion which did not find a link between a current disability and service, even taking into account the Veteran's reports of continuous symptoms following service, the Board finds that the Veteran's statements as to continuity of symptomatology, even though they are competent, credible and probative, are outweighed by the more probative medical evidence. Again, the August 2010 VA opinion is more probative than the Veteran's assertions because they were based on a review of the history, a physical examination and because a rationale was provided. As previously stated, entitlement to service connection requires a finding that there is a current disability that has a relationship to an in-service injury or disease. In this case, there is competent medical evidence showing diagnosed back disabilities, but the preponderance of the evidence is against finding that there is a link between these disabilities, which first manifested many years after discharge from service, and the Veteran's period of active service. The VA examiners did not link the current back disabilities to active service or the reported continuing symptoms. Accordingly, the Board concludes that service connection for a back disability is not warranted under any theory of causation and this claim, therefore, must be denied. The Board has applied the benefit-of-the-doubt doctrine in reaching these conclusions. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996). Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). On March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The VCAA duty to notify was satisfied in this case by way of a letter dated in July 2007 that fully addressed the notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what information and evidence was required to substantiate the service connection claim for a back disability on a direct and presumptive basis and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was also provided with notice of the type of evidence necessary to establish a disability rating and an effective date for the disability on appeal. The Veteran's claim was subsequently readjudicated following this notice by way of an April 2008 statement of the case. The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issue has been obtained. The Veteran's service treatment and post-service treatment records have been obtained. The Veteran was also afforded a VA examination in August 2010 in connection with the current claim. This examination evaluated the Veteran's back disability in conjunction with his prior history and described this disability in sufficient detail so that the Board's evaluation of it is an informed one and the examiner provided an opinion with a supporting rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board acknowledges that the August 2010 VA C&P examiner did not render an opinion about the relationship between the Veteran's scoliosis and his period of active service on a direct basis. But, as discussed above, while the Veteran had a diagnosis of scoliosis in the remote past, he did not have a current diagnosis of scoliosis during the claim period. The August 2010 VA examiner specifically found no evidence of scoliosis on physical examination. See McClain, 21 Vet. App. at 321. Accordingly, the Board finds no prejudice in proceeding with the issuance of a final decision in this case. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In short, the Veteran does not allege, nor does the record reflect, that this examination report is inadequate for evaluation purposes. As noted above, the Veteran's claim was previously before the Board in May 2010 and remanded at that time for additional evidentiary development, to include obtaining outstanding VA treatment records and affording the Veteran a VA examination. The requested development was completed as directed. See D'Aries, 22 Vet. App. at 105; Dyment, 13 Vet. App. at 146-47. Accordingly, the Board finds that VA has complied, to the extent required, with the duty-to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). ORDER Service connection for a back disability is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs