Citation Nr: 1306994	
Decision Date: 02/28/13    Archive Date: 03/01/13

DOCKET NO.  10-22 446A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for a lumbar spine disability.  


REPRESENTATION

Veteran represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

M. Taylor, Counsel


INTRODUCTION

The Veteran had active military service from February 1975 to February 1980.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

In November 2012, the Board determined that new and material evidence had been presented to reopen the claim for service connection for a back disability and remanded the issue of service connection for a back disability for additional development.  

The Veteran withdrew his request for a Board hearing March 2012.  


FINDING OF FACT

The preponderance of the competent and probative evidence is against a finding that a lumbar spine disability is related to active service.  


CONCLUSION OF LAW

The criteria for service connection for a lumbar spine disability have not been met.  38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  

Letters dated in June 2006 and June 2008 satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1).  These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The claim was subsequently readjudicated, most recently in a January 2013 supplemental statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).  

The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify additional records pertinent to the appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  Although an April 2002 VA treatment record reflects the Veteran's request for Social Security Administration disability benefits, in VA Forms 21-0516-1 received in March 2003 and April 2003, he indicated that he was not in receipt of Social Security Administration disability benefits.  38 C.F.R. § 3.159 (c) (2).  VA examinations were conducted in September 2009 and December 2012; the Veteran has not argued, and the record does not reflect, that the December 2012 examination is inadequate for rating purposes.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4).  The examiner reviewed the claims file and the rationale for the opinion provided is based on objective findings, reliable principles and sound reasoning.  The RO complied with the remand directives.  

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the 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; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009).  

II.  Service Connection

Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 

Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period.  Degenerative joint disease, also known as arthritis, is a listed chronic disease for purposes of presumptive service connection.  38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a) , 3.309(a).  The applicable presumptive period is one year following separation from service.  38 C.F.R. § 3.307(a)(3) .

To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, 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.  Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology.  See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). 

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).  Competent lay evidence is 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(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

The Veteran contends that his current back disability is related to an in-service lumbosacral strain.  

The November 1974 service entrance examination report shows the spine and musculoskeletal system were normal.  A September 1978 service treatment record reflects complaints of onset of back pain the night before.  No history of trauma or old injury was reported.  Although localized mild tenderness in the iliac spine was noted, no decreased range of motion was reported, and reflexes were noted to be normal.  The impression was mild lumbosacral strain.  

The October 1979 separation examination report shows the spine and musculoskeletal system were normal.  On the accompanying medical history he specifically denied having or having had recurrent back pain.  

The Veteran is competent to report his symptoms and the Court has specifically indicated that lay evidence may establish the existence of a current disorder capable of lay observation.  To the extent that the Veteran has attempted to establish a continuity of symptoms based on lay statements, however, the Board finds such attempt to be inconsistent with the more probative contemporaneous record, to include not only the negative service treatment records and normal separation examination report, but also the lengthy gap between separation and the initial documented complaints in regard to the back.  

Competence and credibility are to be distinguished.  A July 1999 VA examination report states that the Veteran entered the examining room "walking with a cane in his right hand . . . walked in with a depressed look about him . . . refused to undress himself implying he was in too much pain . . . [and] wished to give the impression that he is completely disabled."  The examination was incomplete due the Veteran's refusal to cooperate.  Regardless, the competent and probative evidence does not establish a current back disability related to service or manifest within the initial year after separation.  

The evidence of record includes an August 1984 National Guard enlistment examination report reflecting no defects or restrictions, along with private treatment records reflecting a history of back pain as a result of work-related accidents in 1992 and in 1994, as well as a motor vehicle accident in 1992.  

Private records reflect an injury to the back in a fork lift accident in July 1994.  A March 1995 record notes that he was off of work for eight months due to a work-related back injury in 1992, and lower back pain secondary to a motor vehicle accident in 1992 was noted.  X-ray examination of the lumbar spine in February 1995 was noted to show no fractures, subluxation, significant degenerative changes, or evidence for spondylolysis.  Pedicles were noted to be intact.  In an August 2004 VA Form 21-526, he reported having back pain since the forklift injury in 1994.  

The September 2009 VA examiner concluded that it is less than likely that the Veteran's lumbar spine disorder had its onset in service or is etiologically related to service.  In addition to treatment on only one occasion for mild lumbar strain during service, the examiner noted that the vast majority of cases of acute low back pain resolve without any long-term sequelae.  The examiner stated that the evidence did not show that the Veteran's in-service back problem was persistent or recurrent following the injury.  Rather, the forklift injury in 1994 was most likely responsible for the Veteran's low back condition, and it was noted that the Veteran had not worked since the 1994 injury.  

Consistent with the September 2009 VA examiner's opinion is that of the December 2012 VA examiner.  The December 2012 VA report of examination notes that although the Veteran reported that he had back pain after separation from active duty, on detailed questioning, back pain was episodic, transient, and related to specific incidents or mechanical/muscular in nature until the 1994 forklift accident, after which he stopped working.  Examples of such were noted to include the Veteran's report of having had back aches while working as a cook which were reported to have resolved after a night's rest.  It was noted that back pain following a motor vehicle accident in the early 1990s did not resolve for six months "until after the case was settled."  The examiner noted that Veteran was able to work as a cook which required prolonged standing for many years after separation and as a warehouse/forklift employee requiring strenuous physical activity until the forklift accident in 1994.  

The examiner explained that back strains are acute, transient, self-limited incidents associated with specific activities or incidents and each episode occurs anew, unrelated to or caused by other episodes.  X-ray examinations of the lumbar spine in 1997 and 1999 were reported to show 'minimal/very minimal' degenerative changes, and results of magnetic resonance imaging (MRI) in 2000 were noted to have been interpreted as normal.  The examiner determined that the progression of degenerative changes shown on imaging studies from 2010-2012 indicated mainly age-related changes with contribution from occupational stresses, the 1994 forklift incident and motor vehicle accidents in the 1990s.  

The December 2012 VA examiner specifically concluded that there is no credible scientific evidence that the single episode of mechanical back strain in 1978 during service is any way related to the Veteran's current back condition.  

Based on the above, the Board finds that the competent and probative evidence, to include the December 2012 VA examination report and opinion, establishes that a back injury or disease, to include arthritis, was not incurred or manifest during service or to a compensable degree within the initial year after separation or is otherwise directly related to service. 

In reaching a determination, the Board has accorded more probative value to the VA medical opinion to the effect that a back injury or disease was not incurred or manifested during service or within the initial year of separation.  The opinion is consistent with the September 2009 VA opinion and the examination report reflects a review of the claims file.  The rationale for the opinion provided is based on objective findings, reliable principles and sound reasoning.  Such is far more probative than the Veteran's lay assertions.  

The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection is not warranted.  


ORDER

Service connection for a back disability is denied. 





______________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs