Citation Nr: 1302398 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 08-30 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to June 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the claim. The claim was remanded by the Board in December 2011 for additional development. Issues concerning entitlement to service connection for radiation poisoning, asbestos poisoning, mustard gas poisoning, and posttraumatic stress disorder were referred to the RO in December 2011, but remain unadjudicated. The Board does not have jurisdiction over them and they are again referred to the RO for appropriate action. FINDING OF FACT The Veteran's current low back disorders, diagnosed as osteoarthritis and degenerative joint disease (DJD), are not related to his military service. CONCLUSION OF LAW A back disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This 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). In addition, the notice requirements apply to all five elements of a service connection claim, including: (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. 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. The RO's September 2006 letter advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). This letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman, 19 Vet. App. at 486. Accordingly, with this letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, as well as identified private and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There has been substantial compliance with the Board's December 2011 remand as the RO provided the Veteran with a Disability Benefits Questionnaire (DBQ) examination in December 2011 in conjunction with the claim on appeal. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006); see also Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). This medical examination was adequate, as it was based upon a complete review of the evidence of record, consideration of the Veteran's lay statements, and clinical examination of the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examiner also provided an opinion as to the etiology of the Veteran's currently diagnosed back disorders. The evidence of record contains additional VA treatment records that were associated electronically after the September 2012 supplemental statement of the case was issued. Review of those records reveals that although the Veteran was seen with complaints related to back pain, no opinion regarding the etiology of those complaints was provided. As the etiology of any current back disorder is the central question for resolution in this case, the VA treatment records associated with the evidence of record are not considered pertinent to the issue on appeal and there is no need to remand for the issuance of an updated supplemental statement of the case. See 38 C.F.R. §§ 19.31, 20.1304 (2012). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Service connection may be established for disability resulting from personal injury incurred in or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may also be granted for a disease first 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). The Veteran seeks entitlement to service connection for a back disorder, which he contends began in June 1967 at Fort Leonard Wood and for which he received in-service treatment. The Veteran's service treatment records are devoid of reference to complaint of, or treatment for, any back problems. At the time of a May 1969 service separation examination, the Veteran noted that he had seen a chiropractor for his back. Clinical examination of his spine, however, was normal and there were no notations made by the examiner related to his back. Post-service evidence of record reveals that the Veteran received chiropractic care from K.E. in November 1975 for lumbar spine pain and in November 1981 for pain in the right sacro-iliac region. He also received treatment from K.E. in February 1989; March 1989; and September 1989, at which time he reported chronic low back pain and being in a car accident. K.E. also saw the Veteran in July 1996; March 1997, for pain at L5 and in his left leg; August 1997; September 1997; and December 1997. No specific diagnoses were reported in K.E.'s records and no opinion on the etiology of the Veteran's complaints was provided. The Veteran was seen for an initial visit at a private chiropractic and orthopedic facility in February 2006, with lower back complaint of three weeks duration after standing for a long time repairing an old car. The Veteran did not report any in-service problems at the time of this treatment, but two vehicular accidents without injuries were noted. The Veteran was diagnosed with lumbosacral neuritis with myalgia. No opinion on etiology was provided. A July 2012 letter from this facility indicates that this was the Veteran's only visit. In an August 2012 letter, chiropractor T.H.C. reported that the Veteran was seen in September 1999, with complaints of low back pain after working on his car. It was his opinion that the Veteran had a bulging disc at L5-S1 and the Veteran was treated until December 1999, when he was released on an "as needed" basis. No opinion on etiology was provided. The Veteran also received VA treatment related to complaints of back pain, also without any opinion related to etiology noted. At a VA spine DBQ examination in December 2011, the Veteran reported a history of chronic, intermittent, low back pain since hurting his back during basic training. The Veteran noted that he had sought treatment and that medication had not helped. The examiner provided diagnoses of osteoarthritis and DJD. The examiner's opinion following a detailed physical examination, and after x-rays of both the lumbar and cervical spine segments were obtained, that based on the history provided by the Veteran of an injury to the lumbar spine and the physical examination that shows DJD in his entire spine "this provider cannot say for sure that his injury in basic training to his lower back could have caused the lumbar spine arthritis." Accordingly, the examiner opined that the Veteran's back disorder "was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The preponderance evidence of record is against the claim for service connection for a back disorder. The Board acknowledges the in-service notation made by the Veteran at the time of his discharge regarding chiropractic treatment he received related to his back. The Board also acknowledges the Veteran's assertion that he injured his back during basic training and that he has had chronic, intermittent back pain since service. It finds these assertions to be both competent and credible. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, the December 2011 VA examiner determined that the Veteran's osteoarthritis and DJD are "less likely than not" related to service, to include the injury during basic training reported by the Veteran. This opinion was based on a review of the evidence of record, a medical examination, and the history as reported by the Veteran and was supported by an adequate rationale. Accordingly, this evidence is afforded high probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (finding a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). Moreover, the opinion provided by the VA examiner outweighs the competent and credible assertions made by the Veteran regarding the etiology of his current back disorders. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As the preponderance of the evidence is against the claim of entitlement to service connection for a back disorder, the statutory provisions regarding resolution of reasonable doubt are not applicable. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a back disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs