Citation Nr: 1237990 Decision Date: 11/06/12 Archive Date: 11/16/12 DOCKET NO. 07-03 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from October 1974 to October 1977 and from January 7, 1991, to June 28, 1991, and has additional unverified service in the Puerto Rico National Guard. This matter comes before the Board of Veterans' Appeals (Board) from a June 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim of entitlement to service connection a lumbar spine disability. The claim was remanded in November 2009 and in June 2011, at which time the Board remanded the claims for further development. As will be further discussed herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders and no further action is necessary in this regard. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDING OF FACT A low back disability is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest within one year of the Veteran's discharge from service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by the Veteran's active duty military service, nor may it be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant 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 claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court 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 the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a January 2006 letter, sent prior to the initial June 2006 rating decision, advised the Veteran of the evidence and information necessary to substantiate his service connection claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, a March 2006 letter advised the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. The Board notes that, while the March 2006 letter was issued after the initial rating decision, the United States Court of Appeals for the Federal Circuit has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006). The Court clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, after the March 2006 letter was issued, the Veteran's claim was readjudicated in the March 2012 supplemental statement of the case. Therefore, any defect with respect to the timing of the VCAA notice has been cured. Relevant to the duty to assist, the Veteran's service treatment records and available VA and private treatment records, and Social Security Administration records, have been obtained and considered. The Board has also reviewed the Veteran's Virtual VA claims file. Additionally, the Veteran was afforded VA examinations in March 2006 and in August 2011 in order to adjudicate his service connection claim. The Board finds that the August 2011 VA examiner offered clear conclusions with supporting data as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). As such, the Board finds that the opinion proffered is sufficient to decide the Veteran's claim. The Board notes that the Veteran's claims were remanded in November 2009 and in June 2011 in order to obtain outstanding treatment records and afford him VA examinations with opinions. As such directives have been substantially complied with, as discussed in the preceding paragraphs, no further action is necessary in this regard. See D'Aries, supra. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran contends that he injured his low back in service when a driver hatch door fell on his head and he hit his chin, leaving him unconscious for a few minutes. He was taken for treatment and received stitches in his head and chin. He contends that he has suffered from low back pain ever since that injury. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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). Direct service connection may not be granted without medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service treatment records reflect that in May 1975, the Veteran did injure his chin necessitating stitches. However, there is no indication that he also injured his low back. On March 1978 and May 1983 re-enlistment examinations, there was no indication of any spinal abnormality. A May 1991 Army Reserve physical examination was negative for any spinal abnormality. A May 2002 Army National Guard report of medical examination shows a normal spinal examination. A January 2004 Army National Guard report of medical history shows that the Veteran denied having any recurrent back pain. Post-service VA treatment records reflect that in October 2005, the Veteran had intermittent pain in the lower back and lower gluteal area with associated numbness. The symptoms had begun six to seven months previously. A November 2005 psychology consultation revealed the Veteran's report that he worked at a factory for 23 years, and that his jobs always involved physical labor which caused him to develop pains, primarily in the back. On March 2006 VA examination, the Veteran reported that his low back pain began following the in-service injury when he was hit in the head. He initially had pain two to three times per week that was mild. He reported having gone to sick call due to back pain. Working as a heavy vehicle mechanic, his back pain began to be present daily with flare-ups. Physical examination and review of a 2005 MRI resulted in the diagnosis of lumbar herniated disc at L4-L5, causing narrowing of neural foramen, and lumbar myositis. VA treatment records dated from 2007 to 2011 show ongoing complaints and treatment for a lumbar spine disability. These records do not contain an opinion as to the etiology of the lumbar spine disability. The same is true for Social Security Administration records that have been associated with the claims file. On August 2011 VA examination, the Veteran reported that while in service, he was driving a tank when the hatch of the tank fell on his head and he lost consciousness. His head was sutured. He did not receive treatment for low back pain in service. He first starting getting treatment for low back pain in 2005 at the VA, but the pain began in 1975. After physically examining the Veteran and reviewing the claims file, the examiner concluded that the Veteran's L4-L5 herniated disc, lumbar spinal canal stenosis, lumbar myositis, lumbar radiculopathy, and lumbar spondylosis were less likely than not caused or aggravated by his service. The examiner explained that upon review of the service treatment records, there was only one indication of low back pain, in April 1987, and that was a symptom associated with laryngitis. The records did not reflect receiving treatment for the low back in service or up until 2005. Thus, it is was apparent that his low back disabilities did not begin until after service. A September 2011 private treatment record reflects the Veteran's report that his lumbar spine symptoms had been cumulative over the previous six years. First, the Board has considered whether service connection is warranted for the lumbar spine on a presumptive basis. However, the record fails to show that the Veteran manifested arthritis to a degree of 10 percent within the one year following his active duty service discharge in 1977. Specifically, there is no evidence of a lumbar spine disability until 2005. As such, presumptive service connection is not warranted. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board notes that the service presumption for arthritis does not apply to the Veteran's period of National Guard service or reserve service. Next, the Board finds that the competent, probative, and persuasive evidence of record is against the Veteran's claim, with the highest weight placed on the August 2011 VA examination. Specifically, the August 2011 VA examiner reviewed the claims file, to include the service treatment records, and conducted a physical examination of the Veteran, and provided an adequate rationale for the opinion reached based upon medical principals. The examiner determined that it was less likely than not that the Veteran's lumbar spine disability was caused or aggravated by service because there was no indication of a service injury to the low back and the first indication of a lumbar spine disability was not until many years later. The Board finds that that opinion comports with the medical evidence, which clearly demonstrates multiple physical examinations in the three decades following the contended injury showing no low back complaints or symptoms. Moreover, the 2005 VA treatment records demonstrate the Veteran's own statements that the lumbar spine pain began in the past year. He also stated, when applying for Social Security benefits, that he was able to work for 23 years but that he began to develop physical ailments, especially in his low back. Thus, the Board finds that despite the Veteran's contentions otherwise, the evidence is against his claim for service connection. In so finding, the Board determines that the Veteran's statements lack credibility because, outside of his claim for VA benefits, his statements throughout the years show no indication that he suffered from low back pain in service or for many years following service. See Caluza v. Brown, 7 Vet. App. 498 (1995). The Board notes that the Veteran has contended on his own behalf that his current back disability, is related to his military service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's low back disability and any instance of his military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Additionally, in a single-judge Memorandum Decision issued by the Court, it was noted that "in the absence of any medical evidence, the record must provide some evidence beyond an appellant's own conclusory statements regarding causation to establish that the appellant suffered from an event, injury or disease in service." Richardson v. Shinseki, No. 08-0357, slip. op. at 4 (Vet. App. May 10, 2010). While the Board recognizes that such single judge decisions carry no precedential weight, they may be relied upon for any persuasiveness or reasoning they contain. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992). Here, while the Veteran is competent to describe his in-service pain and injuries and his current manifestations of a back disability, the Board accords the statements regarding the etiology of the Veteran's disability little probative value as the Veteran is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). The Veteran has offered only conclusory statements regarding the relationship between his in-service injuries and his current disabilities. In contrast, the August 2011 VA examiner took into consideration all of the relevant facts in providing an opinion, to include the type of the Veteran's in-service complaints and diagnoses as well as the current nature of his disability. Therefore, the Board accords greater probative weight to the VA examiner's opinion in this case. (CONTINUED ON NEXT PAGE) In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a current back disability. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a lumbar spine disability is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs