Citation Nr: 1227445 Decision Date: 08/08/12 Archive Date: 08/14/12 DOCKET NO. 07-38 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Bridgid D. Cleary, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1974 to August 1975. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Roanoke, Virginia, Department of Veterans Affairs (VA) Regional Office (RO). In September 2011, the Board remanded this case for further development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The competent and credible evidence does not show that the Veteran's current low back disability is related to a disease or injury in his military service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). 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, including the degree of disability and the 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. 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 January 2008 that 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. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to 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 appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his 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. In compliance with the Board's September 2011 remand, VA returned the claims file to the August 2010 VA examiner for an addendum opinion based on the Veteran's claimed in-service injury of being struck by a jeep. An addendum opinion was issued in October 2011. The examiner considered the Veteran's reports and an accurate history. Thus VA has substantially complied with the September 2011 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis-Merits Service connection will be granted for disability resulting from a disease or injury incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 1131. Direct service connection requires competent and credible evidence of a current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). VA treatment records show consistent complaints of and treatment for chronic back pain dating back to at least April 2006. Private treatment records show repeated low back complaints dating back to June 1978. The August 2010 VA medical examiner diagnosed degenerative disc disease. Thus, the current disability requirement has been met. The second requirement for direct service connection is competent and credible evidence of an in-service occurrence or aggravation of a disease or injury. Davidson, 581 F.3d 1313. In this regard, the Veteran's service treatment records do not show a back injury or contain any findings referable to a back injury. His June 1975 separation examination does not refer to any spine abnormality and in the accompanying report of medical history, the Veteran specifically denied recurrent back pain. The Veteran has; however, reported an in-service back injury that resulted from being struck by a jeep during "war games." See Veteran's statement dated June 2007; November 2007 VA Outpatient Treatment Record; reports of VA examination and addendum dated in August 2010 and October 2011. He has elaborated that he was thrown six to eight feet and was seen by a medic and instructed to follow up at an Army hospital, but did not do so. His report is consistent with the circumstances of his service, and resolving reason able doubt in his favor, is sufficient to establish an in-service injury. 38 U.S.C.A. §§ 1154(a), 5107(b) (West 2002). The remaining question is whether there is a link between the current disability and the in-service accident. In this regard, the Veteran has reported that following the in-service back injury he returned to duty and he has not reported any ongoing symptoms or treatment beginning with the in-service injury. He has reported being seen within a few years of discharge from service. The contemporaneous record also fails to show any continuity of symptomatology dating to service. The earliest post-service report of treatment for a back disability is from the Russell County Medical Center and is dated in June 1978. At that time the Veteran reported being struck by a truck in June 1978. The in-service injury was apparently not mentioned. The same history was reported when he was seen again in July 1978 Subsequently, the Veteran reportedly sustained multiple additional back injuries and received medical treatment, but did not report the in-service injury or a continuity of symptomatology. These injuries included having a rock fall from the roof of a mine and strike him in the back in March 1982, and multiple falls in the 1990's. At no time during treatment for these injuries did the Veteran report the in-service injury, much less a continuity of symptoms beginning with the injury. The medical evidence of record also does not contain a positive nexus opinion. In August 2010, the VA examiner opined that it was less likely than not that the Veteran's current degenerative disc disease was caused by or the result of his military service, noting the lack of a documented in-service injury or treatment immediately after discharge and the significant back injuries suffered after service. In the October 2011 addendum, this examiner acknowledged the Veteran's report of the in-service jeep accident and back injury; but opined that it was less likely than not that the Veteran's current degenerative disc disease was caused by or the result of his military service. She cited the Veteran's denial of any back, joint, or other problems relating to the alleged in-service injury at the time of his discharge from service, or in post-service treatment records. Furthermore, the examiner opined that the severity of the post-service injuries had resulted in the later multiple back surgeries. The August 2010 VA opinion and October 2011 addendum were reached following a review of the record and after a physical evaluation of the Veteran. They were accompanied by a clear rationale that referenced specific evidence of record and ultimately considered the Veteran's reports. For these reasons, the opinions are deemed highly probative. Moreover, no other medical evidence of record refutes such opinion. The Veteran has expressed his belief that his current low back disability was caused by the injury on active service. A lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, however, the Veteran suffered multiple injuries to his back after service, including the June 1978 accident, a March 1982 accident while working in a coal mine, and several falls that lead to additional back treatment. Thus, the question of causation of his current back disability extends beyond an immediately observable cause-and-effect relationship and is complicated by the Veteran's several additional back injuries and surgeries. Absent a continuity of symptomatology, it would require medical expertise to say that the current disability is the result of the in-service injury, rather than the multiple injuries after service. There is no evidence that the Veteran possesses this expertise. Hence, his opinion is not deemed competent. 38 C.F.R. § 3.159(a) (2011) (defining what evidence a lay person is competent to provide). Thus, the weight of the evidence is against finding a causal connection between the Veteran's current low back disability and his military service. As a chronic disease, arthritis, would be entitled to presumptive service connection if the disease became manifest to a degree of ten percent or more within one year of separation from service or was shown in service and at any time thereafter. 38 U.S.C.A. § 1112(a); 38 C.F.R. §§ 3.303, 3.307, 3.309. In this case, the Veteran's current back disability has not been reported to include arthritis, and there is no evidence of this disease in service or the year after service. The diagnosis, to be compensable, would require X-ray evidence. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2011). There is no X-ray evidence within a year of service and no reports of the disease in service. Therefore, presumptive service connection is not warranted. In sum, the preponderance of the evidence is against service connection for low back disability, and as such the benefit of the doubt cannot be applied in the Veteran's favor. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The benefit sought on appeal is accordingly denied. ORDER Service connection for a low back disability is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs