Citation Nr: 1300210 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 08-26 547 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from September 1969 to September 1971. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2006 rating decision. In September 2011, the Board reopened the Veteran's previously denied claim for service connection for a back disability and remanded the claim for additional development and for readjudication on the merits. The requested development has been completed, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). In October 2001, the Veteran testified at a hearing before the Board. A transcript of the hearing has been associated with the Veteran's claims folder. Unfortunately, the judge who conducted that hearing has since retired from the Board. However, the Veteran subsequently provided testimony before the undersigned Acting Veterans Law Judge at a video conference hearing in July 2011. A transcript is of record. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. While a June 2012 VA treatment record received subsequent to the issuance of the most recent (July 2012) Supplemental Statement of the Case contains a reference to the back disorder, this record does not speak to etiology and thus is not "pertinent" to the underlying question of the case in light of the fact that a current disability is otherwise established by the record. The Board thus need not solicit a waiver for this evidence. 38 C.F.R. § 20.1304(c). FINDING OF FACT The weight of the evidence is against a finding that the Veteran's back disability either began during or was otherwise caused by his military service. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. The Veteran contends that his currently diagnosed back disability is the result of his military service. Under 38 U.S.C.A. § 1111, a veteran is afforded a presumption of sound condition upon entry into service, except for any defects noted at the time of examination for entry into service. That presumption can be rebutted by clear and unmistakable evidence that such a disability existed prior to service and was not aggravated by service. See Monroe v. Brown, 4 Vet. App. 513, 515 (1993); Green v. Derwinski, 1 Vet. App. 320, 322 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that, to rebut the presumption of sound condition under 38 U.S.C.A. § 1111 where a condition is not noted at service entry, 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. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). In this case, the Veteran entered service in September 1969. On his enlistment physical in June 1969, his spine was found to be normal. As such, the presumption of soundness attaches to his case. However, there is some evidence that the Veteran injured his back in a motor vehicle accident shortly before entering service, and the Board must therefore determine whether the presumption of soundness has been rebutted. As noted, to rebut the presumption of soundness, it must first be shown by clear and unmistakable evidence that the Veteran had a back disability which existed prior to service. Here, the evidence of record clearly supports a finding that the Veteran was involved in a motor vehicle accident shortly before enlisting in service (and likely after his enlistment physical was completed). Such a conclusion is supported by a May 1970 service treatment record which shows complaints of back pain for two years following a motor vehicle accident, when the Veteran had been in service for less than two years, entering in September 1969. Additionally, the Veteran acknowledged in his Board testimony in October 2001 that a week before entering service he was in a motor vehicle accident, and that he had not had a chance to see a doctor before commencing on active duty. As such, it is clear the Veteran was involved in a motor vehicle accident shortly before entering service. However, the occurrence of a motor vehicle accident alone does not guarantee a chronic back injury occurred, and while this evidence suggests that it was possible that a back injury occurred, there is really no evidence of it. The Veteran acknowledged that he did not seek any treatment prior to service following his accident; and he did not think anything was wrong with him. He stated that only once he began drilling and walking five miles, did his back problems begin. Similarly, the service treatment record showing a back problem is dated a number of months into the Veteran's military service. As such, while the Veteran's statements and the service treatment records allow for the possibility that the Veteran's back was injured in a pre-service motor vehicle accident, this evidence hardly rises to the level of clear and unmistakable evidence of a pre-existing back disability. As such, the evidence of record does not clearly and unmistakably show a pre-existing back disability. Moreover, even if the evidence clearly and unmistakably showed that the Veteran had a back disability which existed prior to service, the evidence does not appear to clear and unmistakably show that it was not aggravated. In this regard, the Veteran's testimony has been that he recalled injuring his back on two separate occasions in service. The Veteran was also put on a temporary profile for his back in May 1970. As such, the Board concludes that the presumption of soundness has not been rebutted. However, that conclusion alone does not mean that service connection is warranted; as it still must be established that the Veteran's currently diagnosed back disability is the result of his military service. In order to prevail on the issue of service connection, there must be (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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). It is not disputed that the Veteran currently has a lower back disability, as such is clearly established by the evidence of record. However, at issue is whether the current back disability either began during or was otherwise caused by his military service. The Veteran entered service in September 1969. On his enlistment physical in June 1969, his spine was found to be normal. In December 1969, the Veteran presented for treatment with complaints of lower back pain, and was given a profile for a week. He presented again a week later with persistent back pain, but x-rays were within normal limits and no muscle spasms were present. The Veteran was given a temporary physical profile for two weeks in May 1970 for lower back pain at which time he was provisionally diagnosed with a lumbosacral sprain and prescribed heat and physical therapy. The profile precluded crawling, stooping, running, jumping, prolonged standing or marching. It was noted that the Veteran had a two year history of lower back pain following a motor vehicle accident, and that he had received several temporary profiles during basic training and during advanced infantry training (AIT) (although there is no official record of such profiles in the claims file). Nevertheless, the physical examination was within normal limits, and a request was made to the orthopedist to determine whether the Veteran could perform field duty that required back pack or prolonged marching. It was noted that the Veteran experienced pain when picking up heavy materials and with bowel movements. The Veteran was able to demonstrate full range of motion, but his back was stiff and he experienced pain on extension. Straight leg raises were negative. On a medical history survey completed in February 1970, the Veteran reported experiencing recurrent back pain, but a physical examination found his spine to be normal. At his separation physical in September 1971, the Veteran's spine was again found to be normal. As such, the service treatment records clearly show that the Veteran experienced some back pain while in service. The Veteran has also, on a number of occasions, described injuring his back two separate times while in service, once in AIT and once while in Vietnam. In December 1971, the Veteran filed a claim for service connection for a back disability, asserting that he had injured his back in January 1970 and been treated at Fort Polk and then in Long Binh. At a Board hearing in October 2001, he reported that during basic training and AIT at Fort Polk, he twisted his back while training with pungi sticks, such that his back "really started bothering him." He indicated that he began going to sick call regularly (approximately once a week), because carrying heavy sacks would bother his back. He recalled being diagnosed with a lower back strain. The Veteran was eventually sent to Vietnam, where he reports being placed on an injury profile for his back, but only receiving sporadic treatment for the back. In an August 2006 statement, the Veteran reported slipping and falling out of a guard tower while in Vietnam. In his August 2008 substantive appeal, the Veteran reported injuring his back while serving in "combat" in Vietnam, stating that he was assigned to a light infantry brigade and was placed on profile for his back. In July 2011, the Veteran testified at a hearing before the Board that he was a foot soldier in Vietnam and fell down a hill. He stated that he was put on profile, and his military occupational specialty was changed from a foot soldier to working in a supply office because he was unable to carry any heavy equipment. The Veteran has asserted that the "combat presumption" is warranted in his case. 38 U.S.C.A. § 1154(b) provides that in the case of any veteran who engaged in combat with the enemy in active service, the VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. What is interesting is that the Veteran's accounts have varied with regard to the alleged incident in Vietnam in which he injured his back. On one occasion, the Veteran reported that he fell down a hill (see his testimony in July 2011). On another occasion, he stated that slipped and fell out of a guard tower (August 2006 statement). Additionally, there is no indication that the Veteran actually served in combat. He was not awarded a Purple Heart, a Combat Infantryman Badge, or any decorations for valor that might suggest exposure to combat. The Veteran's DD-214 does show that he was classified as a light arms infantryman, and he was stationed in Vietnam for approximately two months, so it is not implausible that the Veteran was in combat. Yet, the determination of whether or not the combat presumption is for application in this case is ultimately immaterial in that when considering the circumstances, conditions, or hardships of the Veteran's service, it is clear that he did experience some back problems while there, as he was placed on profile for his back. Additionally, when the Veteran initially filed a claim in 1971, he reported being treated in Vietnam in June 1970 for his back. As such, the Board accepts that the Veteran was treated for back pain and other related symptoms during service. Nevertheless, while the Veteran may have experienced back pain or injury in service, service connection requires such pain to continue from service and result in a current disability or that the back injury result in a current disability. One way in which service connection can be established is through continuity of symptomatology, meaning that symptoms exist consistently from service to the present and result in a currently diagnosed disability. However, as will be discussed, the Veteran has experienced several post-service back injuries which raise a question as to the etiology of his current disability and ultimately lead to the conclusion that a medical examination and opinion is necessary to resolve the Veteran's claim. The Veteran has reported on several occasions that his back pain began in service and has continued since that time. As documented, the Veteran was treated for back symptoms in service, and in November 1971, he presented for treatment at VA, complaining about back pain for seven days. He reported having left the army three months earlier, but indicated that he had experienced the same troubles while in Vietnam. He was diagnosed with a chronic lower back strain. The Veteran filed a claim for service connection, but his claim was denied; and no additional back treatment appears to have been sought for several years thereafter, during which time he worked for the Postal Service. In March 1976, the Veteran presented for treatment following an on the job injury in February 1976 when he fell down a flight of stairs, landing on his back and causing severe back pain. X-rays were negative, and it was noted that the Veteran was a big, muscular man weighing more than 200 pounds, who was having difficulty getting around the examining room, and was having trouble getting on and off the table. After eight days of hospitalization, the Veteran was discharged as asymptomatic with a completely negative examination. At his Board hearing in July 2011, the Veteran testified that his back had gone out first, which caused him to fall down the stairs, rather than his falling down the stairs leading to a back injury. However, the fact remains that it is clear that a traumatic event occurred in 1976 impacting the back. That is, he was not hospitalized simply because he had experienced back pain for a number of years that had worsened. The Veteran's second post-service back injury occurred in May 1984 when he was involved in a motor vehicle accident in which he was traveling at approximately 35 mph when his vehicle was struck in the left door. He was treated by Dr. Fontanier, who noted that the Veteran's back and shoulder were hurting and diagnosed the Veteran with whiplash and with cervical thoracic sprain. In a June 1984 private treatment record, the Veteran reported experiencing pain in his neck and lower back following a motor vehicle accident three weeks earlier. It was noted that he had not been immediately hospitalized following the accident, reportedly telling the emergency responders that he was okay. However, the following day he saw Dr. Fontanier, after which he was hospitalized for five days. Thus, while the Veteran clearly experienced back problems in service, and even sought service connection shortly thereafter, it was not found that service connection was warranted. Following that claim, the claims file is devoid of any records for more than four years describing any back problems and it appears that the Veteran only sought treatment because he fell down the stairs, not because pain had continued since service. Subsequently, the Veteran has been involved in at least one additional motor vehicle accident. The Board has closely reviewed the Veteran's numerous statements in consideration of whether continuity of symptomatology has been established. However, while the Veteran, as a lay person, is competent to report what comes to him through his senses, he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of a back disability. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, given the intervening injuries, multiple years without treatment following service, and the fact that the Veteran worked physically demanding jobs for a number of years (first for the postal service and then for approximately 14 years as a plasterer), the Board concludes that continuity of symptomatology has not been established, and service connection would require a medical opinion of record to link the Veteran's current back disability to his in-service back injuries. In August 2008, a friend wrote a statement indicating that she had known the Veteran since he was 18 years old. The friend essentially argued that the Veteran was in good shape prior to service, injured his back in service, and now had constant pain. However, it is not being disputed that the Veteran was sound at enlistment, that he experienced back pain in service, or that he currently has a back disability. The issue once again is when his current back disability began and what caused it. However, as with the Veteran, the friend lacks the medical qualifications to address the etiology of the Veteran's current lower back disability. Rather, medical evidence is needed to address the etiology of the Veteran's current lower back disability. Here, a number of medical opinions are of record, and they will be addressed and weighed accordingly. In July 1985, Dr. Fontanier noted that he had been treating the Veteran since his motor vehicle accident in May 1985. He indicated that the Veteran did manual types of labor, plastering and stuccoing. Dr. Fontanier stated that the Veteran's condition was guarded for a full and complete recovery, based on his knowledge of the Veteran, the number of years he had worked manual labor, the type of accident and his progress with therapy. Looking at this opinion, Dr. Fontanier focused mainly on the Veteran's manual labor, and not in any way on his military service or any back injuries therein. In January 1990, the Veteran was seen for an acute lumbar sprain after being in a motor vehicle accident and being hit from the rear while wearing a seatbelt. The day after the accident, he reported experiencing numbness in his leg and weakness, as well as back pain and spasm. It was noted that he worked as a plasterer. He was diagnosed with an acute lumbar sprain. He was hospitalized for three days, with some resolution to the point where the Veteran felt he could be treated as an outpatient. In July 1998, Dr. Fontanier noted once again that the Veteran had spent 30 plus years doing manual labor work stuccoing. In September 1998, the Veteran asserted that he had incurred a spinal cord compression in May 1971 while stationed in Long Binh, Vietnam. It was noted that he had worked for 14 years as a plasterer following service. In May 1999, the Veteran sought service connection for a severe back strain which he reported was treated in 1970 at "Ton Say Nhut" hospital in Saigon, Vietnam. He also stated that he had been treated for a severe back strain in 1971 at Fort Hood. He reported receiving private treatment for his back from 1982 to the present (that is more than a decade removed from service). An MRI in November 1998 showed degenerative disease of the lumbar spine, and the Veteran was diagnosed with a spinal cord compression. In a January 1999 VA treatment record, the Veteran reported experiencing lower back pain since being injured in combat during the Vietnam War. In May 1999, the Veteran underwent a cervical laminectomy. In September 2000, he underwent a discectomy. In February 2001, the Veteran underwent a VA examination of his back. The examiner reviewed the service treatment records, noting the motor vehicle accident prior to service and that the Veteran had voiced several complaints of pain as a result of the motor vehicle accident, but without any obvious physical findings. At the examination, the Veteran contended that the motor vehicle accident that was referred to in the service treatment records was minor and that most of the back pain he experienced began during basic training when he was involved in hand to hand combat and required to carry heavy ruck sacks. The examiner noted that the Veteran was seen on multiple occasions, but no objective abnormalities had been recorded during service. Following service, the examiner observed that the Veteran was injured in 1976 when he fell down the stairs and then again in 1985 when he was involved in a motor vehicle accident. The Veteran asserted that the pain in his back had been constant since his motor vehicle accident in 1985. The examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine, but opined that it appeared as though the Veteran's current back difficulties were not consistent with the complaints he made during service. In February 2001, Dr. Fontanier stated that he had known the Veteran for 16 years as a patient, but had no knowledge of his military affairs or records of injury. He added that the Veteran was disabled completely from doing the manual work that he had been accustomed to doing. Dr. Fontanier wrote a letter in November 2001, after apparently reviewing the Veteran's service treatment records. He noted that the Veteran had a back injury during service that was diagnosed as a chronic lower back strain, but observed that no MRIs or CAT scan were available in the medical community at that time. It was noted that x-rays were negative in December 1969, but the doctor suggested that no films were available to review. Dr. Fontanier then skipped ahead to 1998 when the Veteran was treated for a number of back problems, ignoring both the lack of any treatment for several years after service and the multiple significant post-service back injuries. He opined that the Veteran had an injury that progressively worsened with time, and suggested that the Veteran's back problems began while he was in the Army and subsequently worsened with post-service manual labor until he could not function any longer and was physically impaired. Dr. Fontanier asserted that there was no proof that the Veteran's lumbar spine was "normal" in service, because the technological means to evaluate his disc were not available. He explained that calcification is an end result of chronic trauma and inflammation, and indicated that while it was speculative when exactly it began, there was strong evidence that the disease began in 1969 with lumbar injury and limitation in 1970. However, in providing such a statement, that Dr. Fontanier appeared to disregard the impact of the Veteran's multiple post-service accidents including falling down the stairs and a motor vehicle accident in 1985. The Veteran was involved in an additional motor vehicle accident in December 2001. In April 2002, the Veteran was provided with a second VA examination, by the same examiner who had provided the opinion in February 2001. The examiner noted that since he had seen the Veteran previously, the Veteran had been in a motor vehicle accident during Thanksgiving in 2001. The Veteran initially stated that it was a minor motor vehicle accident, and that he did not have any significant problems from it, but the examiner noted that the Veteran did in fact seek emergency room treatment on December 4, 2001 for lower back pain following the accident. The examiner indicated that the Veteran was unable to explain this discrepancy. The examiner noted once again that the Veteran had experienced a variety of back injuries during service, but he found that service treatment records showed only self-limiting soft tissue injury for which there were no objective physical findings. The examiner documented the Veteran's multiple post-service back injuries, including falling down stairs in 1976 and a motor vehicle accident in 1984, both of which required hospitalization. It was also noted that the Veteran was involved in another motor vehicle accident in 1990, following which he began to develop leg symptoms, which the examiner noted was a new symptom. The examiner diagnosed the Veteran with lumbar radiculopathy and a history of a lumbar strain. Following the examination, and a review of the claims file, the examiner opined that the medical records did not support a continued chronic back condition which would be considered directly related to the self-limiting soft tissue injuries that the Veteran sustained during his military service and which were documented in the service treatment records. The examiner noted that the discrepancies between the Veteran's initial descriptions of this lower back pain and the litany of subsequent significant lower back injuries, for which the Veteran was hospitalized following his service career, were far more significant than those injuries that were described in his service treatment records. The examiner explained that falling down stairs and being involved in motor vehicle accidents that required hospitalization would be considered more significant than self-limiting soft tissue injuries that were related to lifting or contusions during hand-to-hand combat training. Additionally, the examiner pointed out that the medical record was silent for interval treatment between 1971 and the Veteran's initial post-service, work-related injury in 1975. In the absence of records, the examiner concluded that the medical evidence of record suggested either that there was no significant lower back condition that pre-existed service and his problems began following the 1975 fall or motor vehicle accident, or the Veteran's motor vehicle accident prior to induction was more significant than is described and the Veteran's back disability pre-existed service. The examiner felt that the first possibility was more plausible. In April 2007, Dr. Fontanier stated that he felt that the Veteran's current disabling back disability started in or around 1969, but provided no additional rationale. In May 2007, Dr. Fontanier wrote that the Veteran had a fall in the Army in 1970 and had progressive and intermittent lumbar pain leading to a cervical fusion in 1999 and a lumbar laminectomy in 2000, but again he did not provide any rationale for such a conclusion. In December 2011, the Veteran underwent another VA examination. The examiner indicated that he thoroughly reviewed the claims file and all available records. He noted that the Veteran's military service included work as a mail clerk, and that he work for the post office for approximately four years after service and then as a self-employed plasterer until approximately 1990 when back problems prevented him from continuing in that line of work. The Veteran again asserted that he had injured his back in service, explaining that he stated having back problems in basic training, and then injured his back falling down a hill in Vietnam. The Veteran did not relate any other injuries to his back at the examination. The examiner noted that the Veteran had undergone surgery on his lower back, but observed that he could not remember when the surgery occurred. The examiner also noted that the Veteran had a cervical laminectomy in May 1999. The examiner then reviewed the service treatment records, noting the Veteran's complaints of back pain in 1969 without any significant injury and with normal x-rays. The examiner also noted the entry from January 1970 which indicated that the Veteran had a history of a bad back for a year and a half following a motor vehicle accident. At that time the Veteran had limitation of motion in his back, but the examination was otherwise normal. The Veteran was seen with complaints of recurrent back pain in February 1970, but the examination was normal. In May 1970, it was noted that the Veteran was found to have a history of back pain for two years after a motor vehicle accident. The examiner also noted that the Veteran was seen on several occasions with no objective findings. The examiner acknowledged that the Veteran was given a profile for his back in May 1970, but stressed that it was not a permanent profile, but rather was only temporary. The examiner took note of the Veteran's two reported in-service injuries, but observed that the service treatment records did not reflect any specific injuries, showing only self-limiting soft tissue injuries with no objective findings on examination and normal x-rays. The examiner noted that since separating from service, the Veteran had experienced a number of back injuries which were well-documented. These included an on-the-job injury in February 1976 when the Veteran fell down a flight of stairs and was hospitalized; a motor vehicle accident in 1984 which also required hospitalization for a lumbar strain; and a second motor vehicle accident in 1990 after which the Veteran began to experience leg symptoms. The examiner indicated that imaging of the Veteran's back in 1990 showed disk protrusions, as well as cervical spine problems. The examiner diagnosed current cervical spine and lumbar spine disabilities. The examiner stated that having reviewed the medical opinions that were of record he concurred with the opinions of the earlier VA examiner that the medical records did not support the conclusion that the Veteran's current back disability was directly related to service. The examiner acknowledged the Veteran's soft tissue injuries in service, but found that they resolved with no residuals and he observed that other than limitation of motion on one examination, there was never any documented back pathology. The examiner then noted that the Veteran was hospitalized on at least two occasions post-service for back injuries. The examiner opined that these incidents were far more likely to be the cause of the Veteran's current condition than was anything that happened to him in military service; as motor vehicle accidents and falling down stairs requiring hospitalization were more significant than self-limiting soft tissue type strains. The examiner also observed that the medical records did not show any back treatment between 1971 and his initial work-related back injury in 1976. When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). The Court has expressly rejected a rule that the opinions of private treating physicians are entitled to presumptively greater weight in evaluating veterans' claims; while the Board is not free to ignore the opinion of a treating physician, it is free to discount that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). Here, the Board has closely examined the multiple medical opinions of record. Ultimately, the Board finds the opinion of the VA examiner from December 2011 to be the most probative and therefore entitled to the greatest amount of weight. Dr. Fontanier has provided at least six letters to the Veteran over the years with regard to his back. However, while Dr. Fontanier has treated the Veteran for a number of years, he did not begin treating the Veteran until after his motor vehicle accident in 1985, that is the treatment began nearly a decade and half after the Veteran separated from service, after two major back injuries (both of which required hospitalization), and after years of working manual labor jobs. When he first saw Dr. Fontanier, the Veteran was complaining about neck and lower back following a motor vehicle accident three weeks earlier. There was no discussion of the Veteran's time in service. Dr. Fontanier saw the Veteran two months later at which time he stated that the Veteran's condition was guarded for a full and complete recovery, based on his knowledge of the Veteran, the number of years he had worked manual labor, the type of accident and his progress with therapy. As such, Dr. Fontanier essentially stated that because of the Veteran's post-service occupations and accident, his back might not recover. In February 2001, Dr. Fontanier stated that he had no knowledge of the Veteran's military affairs or records of injury. It appears that he was able to review the Veteran's records subsequently, as he specifically referenced individual service treatment records in a November 2001 letter. In this letter, he found that x-rays in service were reported negative in December 1969, but he observed that no MRIs or CAT scan were available in the medical community at that time. Essentially, his argument was that while the Veteran's back was found to be normal at his separation physical, the technological means to evaluate his discs were not available at that time, so we cannot know for sure if the Veteran's back was in fact "normal" at that time as the medical officer who physically examined him found it to be. Dr. Fontanier concluded that calcification is an end result of chronic trauma and inflammation, and indicated that while it was speculative when exactly it began, there was strong evidence that the disease began in 1969 with lumbar injury and limitation in 1970. This letter represents the strongest evidence in support of the Veteran's claim. However, in reaching his conclusion, Dr. Fontanier appeared to disregard entirely the impact of the Veteran's multiple post-service back injuries, including falling down the stairs and a motor vehicle accident in 1985, as he did not even reference these significant injuries in his letter. The Veteran was involved in an additional motor vehicle accident in December 2001. While Dr. Fontanier failed to address the Veteran's multiple and significant post service injuries, the VA examiner in 2011 thoroughly addressed them. The VA examiner did carefully review the Veteran's records and noted his contentions about his in-service injuries. However, the examiner explained that the Veteran's in-service injuries appeared to involve only self-limiting soft tissue injuries with no objective findings on examination and normal x-rays. Furthermore, the examiner noted that the profile which was assigned for the Veteran's back was temporary, not permanent. The examiner also noted that following service the Veteran was able to work in physically demanding jobs for nearly 20 years (four years for the Post Office after service, and then approximately 14 years as a plasterer) before his back could no longer handle the manual labor. It is noted that this was precisely the point which Dr. Fontanier had made in July 1985 prior to actually writing a letter to support the Veteran's claim for VA benefits. It also cannot be forgotten that before Dr. Fontanier was attempting to support the Veteran's service connection claim he indicated that the Veteran's condition was guarded for a full and complete recovery, based on his knowledge of the Veteran, the number of years he had worked manual labor, the type of motor vehicle accident he had experienced (in 1984). The examiner acknowledged the Veteran's soft tissue injuries in service, but found that they resolved with no residuals, and he observed that other than limitation of motion on one examination, there was never any documented back pathology. The examiner then noted that the Veteran was hospitalized on at least two occasions post-service for back injuries, opining that these incidents were far more likely to be the cause of the Veteran's current condition than was anything that happened to him in military service; as motor vehicle accidents and falling down stairs requiring hospitalization were more significant than self-limiting soft tissue type strains. The examiner also observed that the medical records did not show any back treatment between 1971 and his initial work-related back injury in 1976. Essentially, to accept his conclusions, Dr. Fontanier is asking the Board to discount or ignore the finding that the Veteran's back was normal at separation and the fact that x-rays did not show any back pathology in service, and then make the leap of faith/assumption that if better equipment had been available at that time, it would have shown that the Veteran had a back disability at that time. Such a conclusion is highly speculative in nature. Dr. Fontanier also asks the Board to overlook the fact that the Veteran does not appear to have sought any treatment for his back for approximately four years after service, during which time he was working for the postal service, a physically demanding line of work. Dr. Fontanier is further asking the Board to ignore the fact that after working for four years at the post office without any document back problems, the Veteran suffered a serious and traumatic accident to his back when he fell down the stairs. It is noted that this injury was of sufficient significance as to require eight days of hospitalization. Looking at the Veteran's file from a longitudinal perspective, the Veteran did voice back complaints in service, and was even given a temporary profile. However, the fact that it was temporary suggests that the Veteran's injury was not seen as permanently disabling. The Veteran's back was found normal at separation, and, following service, the Veteran engaged in physically demanding work for 18 years. During this time, the Veteran suffered at least two back injuries, both of which appear to have been far more severe than his in-service back pain/injuries, in that they required hospitalization for multiple days, whereas there is no indication that the Veteran was ever hospitalized for his back while in service. Even the Veteran's doctor who later wrote the only medical opinion of record that in any way links the current back disability to his military service concluded that the Veteran's back accident in 1984 and his history of manual labor were sufficient to cause the doctor to be guarded about any recovery, a letter which was apparently drafted without any knowledge of the Veteran's military service and in-service back treatment (which Dr. Fontanier acknowledges in a February 2001 letter). Given this history, the Board simply finds that the VA examiner's opinion in 2011 is more plausible, and is better supported by the facts of this case. Moreover, this opinion is supported by the earlier VA examiner who concluded in April 2002 that the medical records did not support a continued chronic back condition which would be considered directly related to self-limiting soft tissue injuries sustained during his military service and documented in the service treatment records. This examiner noted that the discrepancies between the Veteran's initial descriptions of this lower back pain and the litany of subsequent significant lower back injuries, for which the Veteran was hospitalized following his service career, were far more significant than those injuries that were described in his service treatment records. The examiner explained that falling down stairs and being involved in motor vehicle accidents that required hospitalization would be considered more significant than self-limiting soft tissue injuries that were related to lifting or contusions during hand-to-hand combat training. Additionally, the examiner pointed out that the medical record was silent for interval treatment between 1971 and the Veteran's initial post-service, work-related injury in 1975. These two VA opinions most closely align with the facts of the case and are grounded in the evidence of record. The two examiners were fully aware of the Veteran's medical history both during and after service. As such, they are found to be highly probative and entitled to great weight. Moreover, these opinions are found, for the reasons outlined above, to be more probative than the opinions offered by Dr. Fontanier, and therefore greater weight is afforded to the examiners' statements. For this reason, the weight of the evidence necessarily tilts against the Veteran's claim and therefore reasonable doubt cannot be resolved in his favor. Accordingly, service connection is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in July 2006, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, 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). Private and VA treatment records have been obtained, as have service treatment records and service personnel records. Additionally, the Veteran testified at two hearings before the Board. In the Board's September 2011 remand, it was requested that the Veteran's Social Security Administration (SSA) records be sought. SSA was contacted, but they informed VA that no records were available. Additionally, in a May 2012 phone contact, the Veteran specifically denied ever filing a SSA medical claim. VA will make as many requests as are necessary to obtain relevant records from a Federal Department or agency and will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. 38 C.F.R. § 3.159(c)(2). Here any additional efforts would clearly be futile, and an additional remand is not necessary. See 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). With respect to the aforementioned July 2011 hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the acting veterans law judge (AVLJ) specifically addressed the criteria for service connection and suggested that a medical opinion would help the Veteran's claim. Moreover, neither the Veteran, nor his representative, has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2). The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). The Board finds the most recent VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Additionally, the Veteran has not argued that the examination was inadequate. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for a back disability is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs