Citation Nr: 1222285 Decision Date: 06/26/12 Archive Date: 07/02/12 DOCKET NO. 05-01 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to January 1972. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Jackson, Mississippi, which declined to reopen a claim for entitlement to service connection for a low back disorder. In a May 2009 decision, the Board reopened the Veteran's claim and remanded it to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development and a decision on the merits of the reopened claim. The AMC completed the additional development as directed, denied the claim on the merits, and returned the case to the Board for further appellate review. FINDINGS OF FACT 1. The AMC completed all development directed in the May 2009 Board remand. 2. The preponderance of the evidence of record shows the Veteran's currently diagnosed low back disorder did not have its clinical onset in active service, nor is it otherwise causally connected to active service. CONCLUSION OF LAW A low back disorder, to include degenerative disc disease (DDD), was not incurred in active service, nor may it be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107(b) (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307(a), 3.309(a) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or completeness of the application. Prior to issuance of the rating decision appealed, VA notified the Veteran in March 2004 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. See 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). While the March 2004 letter was time-compliant, it was not fully content-compliant, as it did not inform the Veteran of the reason his prior claim was denied and what type evidence would constitute new and material evidence, see Kent v. Nicholson, 20 Vet. App. 1 (2006); and, neither did it inform the Veteran how disability ratings and effective dates are assigned in the event service connection is granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds neither content deficiency worked to the Veteran's prejudice. First, a January 2005 RO letter informed the Veteran why his prior claim was denied and the type evidence he needed to submit to meet the new and material evidence standard. Second, as noted in the Introduction, the May 2009 Board decision in fact reopened the claim. Hence, any VCAA notice error was rendered moot by allowance of that part of the benefit sought. Third, a January 2007 AMC letter related to other claims the Veteran had pending provided full notice on how disability evaluations and effective dates are assigned. Fourth, prejudice is not presumed; and, neither the Veteran nor his representative has asserted any specific prejudice as a result of the Veteran not having been inform of those matters as they specifically related to correspondence associated with the low back claim. See Shinseki v. Sanders, 556 U.S. 396, 129 S. Ct. 1696, 173 L.Ed.2d 532 (2009). Finally, the Board denies the claim in the decision below. Thus, any issue related to assignment of a disability evaluation or effective date is rendered moot. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Therefore, VA has complied with the VCAA notice requirements. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). The case was remanded to obtain the records associated with the Veteran's receipt of benefits administered by the Social Security Administration and for a VA examination and nexus opinion after his claim was reopened. Further, there is no indication or assertion from the Veteran or his representative that there are additional records to be obtain to assist the Veteran. In sum, there is no evidence of any VA error in assisting the Veteran that reasonably affects the fairness of this adjudication. Id. Hence, the Board may address the merits of the appeal without prejudice to the Veteran. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant 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 claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Governing Law and Regulation Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West , 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status will not always constitute competent medical evidence. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Analysis The state of the evidence in this case has not changed significantly since the July 1994 Board decision. The Veteran asserted he injured his back in service while performing assigned duties in the motor pool. Service treatment records dated in June 1970 note the Veteran complained of severe low back pain. An August 1970 entry noted a diagnosis of a persistent back strain. In September 1970, the Veteran reported a two-year history of constant low back pain, but he denied any history of specific trauma or sphincter complaints. He reported further that his symptoms increased from lying on a soft surface. Physical examination revealed the Veteran's gait and posture as normal. Range of motion was within normal limits, and there was no spasm, deformity, or definite tenderness anywhere. Straight leg raising elicited sharp pain at the right iliac crest at 80 degrees; and it was negative on the left at 90 degrees without pain. Reflexes and sensation were normal. X-rays were read as within normal limits, except for lumbar straightening. The Veteran was discharged to full duty, and a bed board was prescribed. While the Board notes the Veteran's report in 1970 of a two-year history of back problems suggest a pre-existing low back problem, the May 1970 Report Of Medical Examination For Induction into active service notes the Veteran's spine was assessed as normal. Thus, his back is presumed to have been in sound condition upon his entry into active service. See 38 C.F.R. § 3.304(b). In December 1970, the Veteran reported his involvement in a motor vehicle accident and a four-year history of back pain. No positive findings were noted. None of the noted entries included a medical excuse from duty or a medically recommended period of light duty. There are no further entries in the service treatment records related to complaints or treatment related to the low back. A report of physical examination at separation from active service is not of record. The Veteran did, however, sign a form dated in January 1972 that noted there had been no change in his medical condition since his last examination. There is no evidence of arthritis of the lumbar spine having manifested at least to a compensable degree within one year of the Veteran's separation. VA outpatient records dated in June 1979 note the Veteran's complaints of neck pain; the Veteran reported the pain was first in his back, and it radiated to his neck, but he did not have back pain on the day of the examination. He denied any recent trauma. There were no positive findings related to the low back. September 1982 VA outpatient records note complaints of neck pain without any associated complaints of low back pain. Private records of Dr. B date back to April 1985, and-other than the noted VA entries, are the earliest records extant related to the Veteran's back. Dr. B's initial April 1985 entry notes the Veteran experienced a work-related lifting injury in 1982; the Veteran was broadsided in a motor vehicle accident in January 1986; and, he sustained another low back injury in December 1983. In December 1985, Dr. B diagnosed DDD at L5-S1 with a partial bulging disc; and he advised the Veteran would sustain a ruptured disc without lifting restrictions on his job. The Veteran was discharged to work with restrictions. Dr. B noted another low back injury when the Veteran mis-stepped while descending some steps. A December 1989 report of psychiatric examination conducted for the Social Security Administration notes the Veteran fell off of his porch. The salient point, however, is that none of these several private medical records note any report by the Veteran of an in-service low back injury. Neither do they contain any medical opinion or suggestion that the Veteran's low back disorder had its onset in active service or was otherwise related to his active service. Instead, they all note the onset of the symptoms of the Veteran's currently diagnosed low back disorder as having their onset in the 1980s. A May 1992 VA examination report reflects the examiner diagnosed chronic low back pain of uncertain etiology. The examiner also noted a remote injury by history. As noted earlier, the Board remanded the case for an examination and opinion by a VA examiner. The June 2009 VA examination report reflects the examiner conducted a comprehensive review of the claims file, and he specifically noted the evidence set forth above. The Board notes, however, that the examiner noted the December 1970 entry in the service treatment records related to the phrase, "all his life," was difficult to read due to the provider's handwriting. The Board notes that the entry notes the Veteran reported his feet had hurt all of his life. The June 2009 report reflects the Veteran reported he hurt his back in service in 1970, and he had sustained back pain ever since and received treatment for it. The Veteran also reported a work-related injury some years after his separation from active service, and he had to leave the work force due to his low back problems. Based on the objective findings on clinical examination, and the review if the claims file, to include the service treatment records and private medical records from the 1980s, the examiner opined it was not at least as likely as not that the Veteran's multilevel DDD had its clinical onset during active service or is otherwise related to the Veteran's active service. The examiner noted the Veteran served in the military from age 20 to just eight days shy of age 22; and, it was not likely he would have had any arthritis or DDD at that point in time. Further, the related records were silent as concerned any back-related problems until the mid-1980s, when his work-related injury occurred. The Board finds that the preponderance of the evidence shows the low back episode documented in 1970 was not diagnosed as a chronic medical condition but was acute and transitory that fully resolved. Thus, in the absence of a competent medical opinion that links the Veteran's current disorder with his active service, there must be credible evidence of continuous low back symptomatology. See 38 C.F.R. § 3.303(b). (Emphasis added). The only evidence to that effect is the Veteran's assertions. The Veteran is fully competent attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy, and whether he received post-service treatment. See 38 C.F.R. § 3.159(a)(2); see also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Since the Board is now assessing the Veteran's reopened claim on the merits, however, his lay evidence is not presumed credible. It must be assessed for credibility and, even if found credible, weighed against the other evidence of record. Further, the Board acknowledges the Veteran's lay testimony may not be rejected solely because there is no evidence of contemporaneous medical documentation; but, the absence of such evidence is a valid factor for the Board's consideration when assessing credibility and weight. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The totality of the evidence of record convinces the Board the Veteran is incredible as concerns his claims of continuous low back pain from his separation from active service forward. The evidence not only shows several years of silence as concerns low back complaints and symptoms, but also several opportunities for him to have reported it during his presentations for VA treatment in the late 1970s and in a claim for VA compensation in the late-1970s-early-1980s. Even were the Board to find the Veteran's claims of continuous symptoms credible, the weight of the evidence to the contrary is compelling. As concerns the Veteran's opinion that his current low back disorder is causally related to the symptoms treated in service, there is no evidence the Veteran has any medical training. The Board finds that rendering an opinion on the etiology of a spine disease, especially many years after the fact, is beyond the training and experience of the average lay person. See 38 C.F.R. § 3.159(a)(1). Further, there is no evidence the Veteran has merely reported the diagnosis of a medical professional, or that a medical professional used the Veteran's lay input to render a diagnosis and nexus opinion. See Jandreau, 492 F. 3d 1372. Instead, the private medical evidence shows the onset of the Veteran's current low back order as in the 1980s and, that it is associated with more than one work-related injury. In light of the above, the Board is constrained to find the preponderance of the evidence is against the Veteran's claim on both a presumptive and direct basis. 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a). In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for a low back disorder is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs