Citation Nr: 1307359 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 08-39 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to October 1975. He also had subsequent service in the United States Army National Guard with unverified dates of active duty for training (ACDUTRA). This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, that found that new and material evidence had not been submitted to reopen the claims of service connection for a low back disorder. In September 2011, a Travel Board hearing was held before the undersigned; a transcript of the hearing is included in the claims file. The case was previously before the Board in February 2012 when the matter was reopened and on de novo review remanded for additional development. In May 2012, the Board remanded the matter again. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's low back complaints in service were acute and resolved without residuals; a chronic low back disability was not manifested in service; arthritis of the low back was not manifested in the first year following his discharge from active duty; and any current low back disability is not shown to be related to his service, to include complaints noted therein. CONCLUSION OF LAW Service connection for a low back disorder is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of his claim. A July 2008 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also informed the appellant of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The RO arranged for a VA examination in February 2012 which (when combined with the May 2012 addendum medical opinion) the Board finds to be adequate for reasons that will be discussed below. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The record shows that the Veteran is in receipt of benefits from the Social Security Administration (SSA). It does not appear that VA has attempted to obtain records from SSA. However, a remand to secure such records is not required because the Veteran has not claimed (nor does the record suggest) that medical records from SSA would be relevant to his back disability claim (i.e., show that he has a current back disability related to a back injury sustained in service). The record reflects that SSA records pertain primarily to paranoid schizophrenia and were relevant to his claim for nonservice-connected pension. In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010), the United States Court of Appeals for the Federal Circuit held that "relevant records" for the purpose of 38 U.S.C. 5103A are those records that relate to the injury for which the claimant is seeking benefits, and have a reasonable possibility of helping to substantiate the Veteran's claim. The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background and Analysis Initially, the Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. (The Virtual VA file contains evidence of ongoing VA treatment for back complaints but no competent medical evidence addressing the question of a nexus between the Veteran's back complaints in service and his current low back disability.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (including arthritis) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for arthritis). 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a claimed disability, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). For purposes of establishing service connection, periods of ACDUTRA are considered active duty service. 38 U.S.C.A. §§ 101(24), 1110, 1131. Presumptive periods, however, do not apply to periods of ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 C.F.R. § 3.309 (presumption of service incurrence for arthritis) for the appellant's periods of ACDUTRA (i.e., after his October 1975 separation from active duty service) is not appropriate. A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). However, lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (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). Competent medical evidence is needed where the determinative question is one requiring medical knowledge. Id. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also mean statements conveying sound medical principles found in medical treatises, and may include statements in authoritative writings, such as medical and scientific articles and research reports. 38 C.F.R. § 3.159(a)(1). 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 layperson. 38 C.F.R. § 3.159(a)(2). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran contends that he has a current chronic low back disability that was incurred in service. Specifically, he contends that he initially injured his back during his period of active duty service (between 1973 and 1975) and reinjured it in 1978 during a period of ACDUTRA (during a weekend drill with the Army National Guard (ARNG) when the truck in which he was a passenger stopped abruptly and caused its cargo of military sleeping cots to fall on him). He claims that his back impairment has progressively increased since the inservice injury. See September 2011 Travel Board Hearing testimony. The Veteran's STRs for his period of active duty service are silent for any complaints, findings, treatment, or diagnosis of a lumbar spine condition. On September 1975 service separation examination, clinical evaluation of the spine was normal and he reported no recurrent back pain. The STRs for his period of ACDUTRA show that the spine was normal on clinical evaluation and he report no history of recurrent back pain on July 1977 ARNG enlistment examination. STRs during his period of ARNG service show that the Veteran had been riding on the back of a 2 1/2 ton truck in August 1978 and was struck in the back by cots which fell on him when the truck stopped. The impression was soft tissue injury to the right lumbosacral area. X-ray of the lumbosacral spine was within normal limits. On examination of the back four days after the incident, the impression was "contusion to back." In October 1978, he complained of continued back problems since the injury and underwent physical therapy. The postservice evidence shows that, on October 1998 VA general medical examination, the Veteran had no abnormalities of the spine on musculoskeletal evaluation. The initial postservice evidence of spine related complaints is a December 2003 VA treatment report which notes that the Veteran reported injuring his back the previous year. He complained of "severe lower back pain" and cramps in the back of both legs, making it difficult for him to walk. A January 2004 VA treatment report shows that the Veteran stated he had chronic lumbago and wanted medication. He was given Ibuprofen as needed for back pain. He reported no relief from Ibuprofen for back pain in February 2004. May 2004 musculoskeletal examination showed muscular spasm in the lumbar region. X-ray examination of the lumbar spine showed mild degenerative/osteoarthritic changes with narrowing of L4-5 and L5-S1 disc spaces and small anterior lateral osteophytes. October 2008 computed tomography (CT) scan of the lumbar spine showed degenerative disc disease at multiple levels with central canal stenosis at L4-5 and L5-S1. On September 2011 private orthopedic examination, the Veteran reported a 6-7 year history of "severe" back and right lower extremity pain. In connection with undergoing magnetic resonance imaging (MRI) of the lumbar spine in September 2011, he reported severe low back, right buttock and right leg pain for the last 3 years. On February 2012 VA examination, the diagnosis was lumbar degenerative disc disease with spondylolisthesis. Based on a review of the Veteran's claims file (but not his Virtual VA file) the examiner opined that the Veteran's lumbar degenerative disc disease with spondylolisthesis was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in service injury, event, or illness. The examiner concluded that the back condition (soft tissue injury/strain) treated in service resolved and is inconsistent with the Veteran's current lumbar degenerative disc disease with spondylolisthesis. The examiner explained that there was no continuity of the back pain treated in service, noting the 26 year gap between the 1978 injury in service and the initial post service treatment for back pain in 2004. [Notably, the examiner had not reviewed the Veteran's Virtual VA file and did not note the December 2003 initial treatment for back complaints.] The examiner also noted the September 2011 lumbar MRI report showing that the Veteran reported experiencing severe low back, right buttock and right leg pain for the last 3 years. A May 2012 addendum opinion (based on a review of the Veteran's claims file and Virtual VA file) also found that the Veteran's lumbar degenerative disc disease with spondylolisthesis was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in service injury, event, or illness. The examiner outlined a detailed medical history and explained that the Veteran's back injury in August 1978 during ACDUTRA with the Army National Guard (diagnosed as soft tissue injury to the right lumbosacral area with normal lumbar X-rays) is inconsistent with current clinical findings and diagnosis of lumbar degenerative disc disease with spondylolisthesis. Further, the examiner explained that the Veteran was not treated for symptoms of degenerative disc disease or spondylolisthesis in service and, during December 2003 VA treatment, reported chronic low back pain since injuring his back the previous year. The evidence of record demonstrates that the Veteran has a low back disability. VA treatment records note lumbar degenerative disc disease with spondylolisthesis. The Veteran's STRs document that he sustained a back injury during ACDUTRA in August 1978 and was treated for complaints of back pain. [Although the Veteran testified that he was treated for back complaints during his period of active duty service from 1973 to 1975, the STRs for this period of service are silent for complaints, findings, or treatment for the low back.] However, the back complaints in service apparently resolved, as his last such complaint was in October 1978. Notably, that is the opinion of the VA examiner. Furthermore, there is no evidence that arthritis of the lumbar spine was manifested in the first postservice year following his October 1975 separation from active duty (the initial clinical evidence of back complaints after separation from service was not until December 2003). Consequently, service connection for a low back disability on the basis that such became manifest in service and persisted or on a presumptive basis (for arthritis of the lumbar spine as a chronic disease under 38 U.S.C.A. §§ 1112, 1137) is not warranted. To the extent that the Veteran attempts to substantiate his claim for service connection for a low back disability by his more recent accounts of continuity of symptoms since service, the Board finds such accounts not credible. They are contradicted by the more contemporaneous (and more probative) clinical data of record. Specifically, although there are VA records dated as early as 1998, these records are silent for back complaints until December 2003. What is presented then, is the question of whether in the absence of any credible or objective evidence of continuity since service, the Veteran's low back disability may somehow be related to his remote service (to include as due to low back complaints therein). That is a question that is inherently medical in nature. Whether there is a nexus between a current disability and remote service/complaints therein absent evidence of continuity is a medical question that requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ("Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court."); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The only competent evidence of record in the matter of a nexus between the Veteran's service and his current low back disability, the addendum opinion of the May 2012 VA examiner (unchanged from the prior February 2012 opinion), is to the effect that the Veteran's current low back disability is less likely as not related to complaints of low back pain during ACDUTRA in 1978. The examiner explained that the Veteran's 1978 soft tissue injury to the right lumbosacral area with normal lumbar X-rays is inconsistent with his current lumbar degenerative disc disease with spondylolisthesis diagnosed 26 years later. The examiner further explained that the lengthy gap between the 1978 injury in service and the initial post service treatment for back pain (in 2003) failed to indicate a chronic disabling condition. As the opinion is by a medical professional competent to provide it, and explains the underlying rationale (citing to medical evidence), it is probative evidence in this matter. As there is no medical evidence to the contrary the Board finds it to be persuasive. In light of the foregoing, the preponderance of the evidence is against this claim. Therefore, the benefit-of-the-doubt doctrine does not apply; the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a low back disability is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs