Citation Nr: 1306277 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 05-36 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from March 2001 to March 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in November 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. This matter was previously before the Board in October 2012, when it was remanded for a nexus opinion. The case is again before the Board for appellate consideration. FINDING OF FACT The Veteran does not have a low back disability that is causally related to his active military service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in June 2004, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection. The letter informed the Veteran of what evidence and information he was responsible for, and the evidence that was considered VA's responsibility. In compliance with the duty to notify, the Veteran was informed in a March 2006 letter of the criteria for assignment of a disability rating and/or effective date, in the event of award of the benefit sought. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although VCAA notice was not completed prior to the initial adjudication of the claim, the Veteran has not been prejudiced by this VCAA notice defect. In this regard, the record demonstrates that the case was adjudicated thereafter in multiple supplemental statements of the case. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. The evidence of record includes VA treatment records, and statements on appeal. There is no indication that there are outstanding available evidence that is pertinent to the appeal. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A VA evaluation of the low back with nexus opinion was obtained in December 2012. As a VA examination of the low back, with nexus opinion, has been added to the claims files in response to the October 2012 Board remand, there has been substantial compliance with the October 2012 Board remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) ((Holding that remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives)). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is adequate, as it is predicated on a reading of relevant medical records in the Veteran's claims file and physical examination findings. The opinion considered all of the pertinent evidence of record, to include the Veteran's medical records and statements, and provided a rationale for the opinion stated. There is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issue decided herein. The Veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Analysis of the Claim The Veteran seeks service connection for low back disability. The Board notes that the Veteran was granted service connection for a chronic neck disability by rating decision in August 2012, which assigned a 20 percent rating effective March 16, 2004. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran's service treatment reports reveal that he was seen in February 2003 for back pain, which was thought to be possible muscle strain. He complained in April 2003 of low back pain since March 3rd; the assessment was low back pain, appears to be muscle strain. It was reported in July 2003 that the Veteran's initial low back problem began while practicing "buddy carry" in the sand; it was noted that the Veteran probably had sacroilitis. He was given a 14 day profile for his low back and left foot pain that consisted of avoiding running, jumping, marching with a ruck sack, and lifting more than 20 pounds. The Veteran complained on VA general medical evaluation in July 2004 of neck, low back, and foot pain since service. Physical examination of the low back included forward flexion to 90 degrees and backward extension to 30 degrees. It was noted that X-rays of the lumbar spine did not show evidence of fracture or disc space narrowing. Musculoskeletal pain of the low back was diagnosed. On subsequent VA general medical evaluation in September 2004, the Veteran complained primarily of neck disability since service. Range of motion of the lumbar spine was normal. The assessment was chronic neck and back pain of unknown etiology. VA treatment reports dated from September 2004 to July 2012 include complaints of neck and back pain with diagnosis of neck and back pain. The Veteran complained on VA evaluation in October 2009, which included review of the claims files, of stiffness and pain in the neck, which radiated down to the low back. There was normal lumbar lordosis with no scoliosis or kyphosis. Low back muscle tone was good; there was no spasm or atrophy. He did not complain of any pain on palpation. Range of motion included 60 degrees of flexion, with complaint of pain at the end of motion; 20 degrees of extension without pain complaint; lateral bending to 25 degrees to either side without pain; and rotation of 20 degrees without pain. There was no neurological deficit of the lower extremities. X-rays of the lumbar spine were considered normal. The diagnosis was chronic cervical and lumbar strain without evidence of neurological deficiency, with some limitation of motion. The examiner concluded, based on review of the claims files and examination of the Veteran, that any current low back disability was not causally related to service because his complaints were primarily subjective in nature and there were no significant residuals found on physical examination. A subsequent VA compensation and pension evaluation, which included review of the claims files, was conducted in June 2011. The Veteran complained of neck pain but denied any low back pain or problems. Degenerative changes of the cervical spine were found on X-rays, and the examiner concluded that the Veteran's cervical disability was at least as likely as not related to service. No diagnosis involving the low back was provided. This examiner noted in July 2011 that, after reviewing the service treatment records, there was evidence of right foot, neck, and low back conditions, although the Veteran denied any current low back problem. It was reported on VA evaluation in December 2012, which included review of the claims files, that the Veteran complained of neck pain that radiated to his low back; he denied any low back difficulty or primary lumbar spine pain. There was no objective evidence of painful low back motion or functional loss. There was no loss of strength or sensory deficit in the lower extremities. The examiner concluded, after review of the claims files and examination of the Veteran, that the claimed condition was less likely than not (50 percent or greater probability) incurred in or caused by in-service injury because the Veteran did not have a current lumbar spine condition, as the symptoms he had in service are gone. Based on the above evidence, the Board finds that the Veteran does not have a low back disability due to service. Although he did have low back problems in service, X-rays of the lumbar spine were normal on VA evaluation in July 2004, which is only four months after service discharge; pain was the only diagnosis in July 2004. Moreover, the October 2009 and December 2012 VA nexus opinions, which are based on a review of the claims files and a physical evaluation of the low back, are probative evidence against the claim. Despite some loss of low back motion in October 2009 due to pain, the examiner concluded that the Veteran did not have a current low back disability due to service because there were no significant residuals on physical examination. Because there was no physical evidence of a low back disability, and because the Veteran did not complain of a current low back problem, on examination in December 2012, the examiner also concluded that the Veteran did not have a low back disability due to service. As such, the Board finds that there has been no demonstration of a chronic low back disability at any time during the appeal period. Service connection may not be established in the absence of demonstration of current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Consequently, service connection for a low back disability is not warranted. The lay statements from the Veteran have been taken into consideration in this decision. Although the Veteran is competent to report his subjective problems, he is not competent to diagnose or opine that he has a low back disability due to service. Laypersons are not competent to provide evidence in certain medical situations, such as in cases involving the etiology of a back disability. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In fact, as noted above, the Veteran indicated in December 2012 that his low back problem had resolved. Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim for service connection, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs