Citation Nr: 1136817 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 03-27 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from September 1971 to September 1975, and from May 1978 to July 1979. This case comes before the Board of Veterans Appeals (Board) on appeal of a November 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, that, in part, denied claims of entitlement to service connection for a back condition and right shoulder pain. In January 2009, the Board, in part, remanded the case to the RO for further development. In a September 2010 rating decision, the RO granted service connection for a right shoulder disability. Thus, this issue is no longer before the Board. FINDING OF FACT The competent evidence does not show that the Veteran's low back disorder had its onset in service or within one year thereafter, or that it is otherwise related to any incident of service. CONCLUSION OF LAW The criteria for service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in April 2002 prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. In the instant case, the Veteran was never informed of how VA determines disability ratings and effective dates. However, as the instant decision denies service connection, no disability rating or effective date will be assigned. Accordingly, any absence of Dingess notice is moot. Therefore, no further development is required regarding the duty to notify. 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 treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 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 claims file contains the Veteran's limited service treatment records, as well as post-service reports of VA and private treatment and examination. With respect to the service treatment records, the Veteran was asked to submit any in his possession. However, he replied that he did not have any. The Board also observes that his records from the Social Security Administration could not be located after comprehensive searches, and are thus unavailable. A response from that agency indicated that additional research attempts would be futile. Further regarding the duty to assist, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. Regarding the unavailable service treatment records, the Board notes that where a veteran's service treatment records have been destroyed or lost, there is a duty to advise him to obtain other forms of evidence. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). In this case, the Veteran was advised of the missing records and requested to send any records in his possession. Thus, the Board concludes that VA's heightened duty to assist has been satisfied. The Board also has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Id. at 367; Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The analysis herein has been undertaken with this heightened duty in mind. However, the Board points out that the injury in question occurred during his second period of service, for which the service treatment records have been associated with the claims file. In the January 2009 remand, the Board requested that the RO schedule the Veteran for a VA examination to determine whether his current low back disability is causally related to service. Accordingly, he was scheduled for examinations in March 2010 and December 2010, and the reports of those examinations, as well as addenda, provided opinions that were substantially responsive to the Board's request. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran 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). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303(a) (2010). Additionally, if arthritis is manifested to a degree of 10 percent within one year after separation from service, the disorder may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2010). Service connection may be also 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). Establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.303(a). See Baldwin v. West, 13 Vet. App. 1 (1999). The Veteran contends that he injured his low back at the same time he injured his neck and right shoulder, for which service connection has been established. The service treatment records associated with the Veteran's second period of service reflect that he fell from a cliff onto his neck and right shoulder. Although there are references to the back in July and August 1978 treatment records, upon closer inspection, such entries refer to the neck and upper back, in between the shoulders, and not to the low back. There is no reference specific to the lumbar region. Thus, the record fails to show that the Veteran injured his low back in service. Post-service medical records reflect that the Veteran suffered an injury to the low back after separation from service. An August 1982 letter from a private chiropractor reflects that he had initially examined the Veteran in September 1979, at which time he reported a history of headaches and cervical muscle myospasms that began in service. The chiropractor noted that he had provided treatment on three occasions with complete relief of symptoms. The chiropractor added that the Veteran had been treated six other times for a slip and fall injury to the low back, and had been seen again nine days earlier for right shoulder and cervical spine discomfort. The above evidence shows that the Veteran was treated for neck and right shoulder problems shortly after separation from service, indicating a continuation of the in-service injuries. It also shows that he injured his low back some time after September 1979 in a separate post-service injury. An August 2004 letter from another private chiropractor reflects that he had treated the Veteran from August 1986 to July 1995. The report of history noted a fall from an embankment onto the upper back and shoulders in service, with a subsequent injury to the right shoulder and neck during a football game against the Marines. The chiropractor opined that the Veteran's migraines and neck and right shoulder pain were the result of injuries incurred during service. The above evidence shows that the Veteran injured his upper back and shoulders in service and his current neck and right shoulder disabilities are due to the in-service injuries. It does not provide a nexus between his low back disability and service. A March 2010 VA examination report reflects the Veteran's history of sustaining an eight-foot fall onto his right shoulder, neck, and paraspinal area in service with the subsequent development of right shoulder, neck, and low back disabilities. The Veteran stated that he has had low back pain for 20 years due to spondylosis. After examining the Veteran, the examiner provided diagnoses of cervical degenerative disc disease, right shoulder impingement syndrome with scapular dyskinesis, and lumbar facet arthropathy at L3-5 with mechanical low back pain and mild right lower extremity radiculopathy of L4. The examiner then opined that, given the Veteran's history of an eight-foot fall onto his right neck and shoulder region, his neck and shoulder disabilities were related to service. However, the back disability was not found to be related to the in-service injury. The RO determined that the examiner did not provide a rationale for his opinion and thus requested an addendum. However, the Board observes that the examiner did provide a rationale, albeit a very simple one, i.e., that the Veteran fell onto his neck and right shoulder in service, not his low back. Regardless, the record indicates that the examiner was no longer available and the Veteran was afforded a new examination with another examiner. A December 2010 VA examination report reflects a misunderstanding on the part of the examiner and no opinion on the etiology of the Veteran's low back disability was provided. In an April 2011 addendum, the examiner noted a review of the pertinent service treatment records, including an August 1978 record showing treatment for right shoulder and back pain after falling down a cliff, and a diagnosis of strained trapezius. The examiner then opined that the Veteran's current low back disability was due to service. The examiner explained that the Veteran had a severe fall that resulted in neck, shoulder, and low back pain but the neck pain was much worse than the low back pain at the time, causing him to seek more treatment for the neck. The RO requested another addendum, noting that the examiner failed to see that there was no actual treatment for the low back in service and did not address the Veteran's post-service injuries. The Board agrees with the RO's assessment. In a June 2011 addendum, the examiner noted another review of the claims file, including the above August 1982 letter from a private chiropractor showing a post-service slip and fall injury to the low back. The examiner then opined that the Veteran's current low back disability was not due to service. The examiner explained that the service treatment records document an injury to the neck, for which the Veteran has consistently recounted the mechanism of injury, and the post-service medical records document an injury to the low back in a slip and fall mechanism of injury, with subsequent reinjury. The Board observes that the above opinion has great probative value, based as it was on a review of the claims file and examination of the Veteran, and with a clear rationale for the opinion. Moreover, while previous examiners had reviewed the claims file, they misconstrued the information contained therein. The June 2011 examiner, by contrast, most fully and accurately applied the medical history in arriving at her conclusion. Given the above evidence, the Board finds that the competent evidence does not show that the Veteran's low back disorder had its onset in service or within one year thereafter, or that it is otherwise related to any incident of service. Again, the service treatment records only document injuries to the neck and shoulders and the post-service medical records document injuries to the low back. Although it is unclear whether the Veteran was treated for the low back within one year after discharge from service, it is clear that he was treated for a post-service injury. Further, two VA examiners have opined that the Veteran's current low back disability is not related to service. The Board acknowledges the Veteran's assertion that he has had problems with his low back since service. The Board notes that he is competent to give evidence about observable symptoms such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, 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). However, to the extent that he is claiming to have experienced continuous low back pain since active service, he is not found to be credible. Again, his service treatment records do not document any low back problems. The post-service medical records document an injury to the low back incurred after discharge. Lastly, if he had experienced low back problems continuously since active service, it would be reasonable to expect that he would have filed a disability claim much sooner than in February 2002. For all these reasons, the Board finds that the statements alleging or implying continuity of symptoms are not credible here. Therefore, continuity of symptomatology is not established by either the competent evidence or the Veteran's own statements. Moreover, the probative medical evidence of record does not relate the current low back disability to active service. Thus, service connection for a low back disability is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. § 3.102 (2010); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disability is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs