Citation Nr: 1307710 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 10-49 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from October 1952 to October 1956, with additional service in the Naval Reserve. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Manchester, New Hampshire (RO). This case was remanded by the Board in October 2011 and September 2012 for additional development. 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). FINDINGS OF FACT 1. Spondylolisthesis, spina bifida occulta or other low back disability was not demonstrated at the Veteran's entrance into military service. 2. The evidence clearly and unmistakably shows that the Veteran's spondylolisthesis/spina bifida occulta is congenital in nature and, thus, pre-existed service. 3. The competent evidence of record does not show any disease or injury superimposed over the Veteran's congenital spondylolisthesis/spina bifida occulta during military service. 4. The competent evidence of record does not show that any other acquired diagnosed low back disorder, such as lumbar sciatica, lumbar segmental dysfunction/subluxation, chronic low back strain, and osteoarthritis of the lumbar spine, are etiologically related to or had its onset during the Veteran's period of active military service; nor is there evidence of arthritis of the lumbar spine manifested to a compensable degree within one year of service discharge. CONCLUSIONS OF LAW 1. The Veteran's preexisting spondylolisthesis/spina bifida occulta represents a congenital/developmental defect which is not subject to service connection, nor was an acquired low back disorder superimposed during service on the spina bifida occulta at L1. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303(c) (2012). 2. An acquired low back disorder, such as lumbar sciatica, lumbar segmental dysfunction/subluxation, chronic low back strain, and osteoarthritis of the lumbar spine, was not otherwise caused or aggravated by military service, nor was arthritis of the lumbar spine manifested to compensable degree within one year of service discharge. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011, 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) 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, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receiving a complete or substantially complete application, VA must notify the claimant of any information and evidence not of record that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a). By a pre-adjudication January 2009 letter, the RO specifically notified the Veteran of the substance of the VCAA including the types of evidence necessary to establish his claim for a low back disorder and the division of responsibility between the Veteran and VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the letter essentially satisfied the requirements of the VCAA by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claim; (2) informing the Veteran about information and evidence VA would seek to provide; and (3) informing the Veteran about the information and evidence he was expected to provide. The notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA, however, may proceed with adjudication of a claim if errors in the timing or content of the VCAA notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Pelegrini, 18 Vet. App. at 121; Sanders v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007); Simmons v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, VCAA notice in accordance with the law was provided prior to the appealed February 2009 rating decision. The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, the January 2009 letter informed the Veteran of the Dingess elements. The Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) . The Board also finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate the claim for service connection for a low back disorder, and that there is no reasonable possibility that further assistance would aid in substantiating it. The Veteran's entire service treatment records (STRs), post-service private and VA treatment and examination reports, and statements and testimony of the Veteran are of record. In addition, in an October 2011 facsimile to the Board, the Social Security Administration (SSA) indicated that they did not have any records of the Veteran in their database. This case was most recently before the Board in September 2012. At that time, the Board remanded the claim to have the RO schedule the Veteran for a VA examination to determine the etiology of any currently present low back disorder. VA examined the Veteran that same month. A copy of this examination report has been associated with the claims file. The Board finds the September 2012 VA examination report to be adequate for evaluating the claim on appeal. The VA examiner's conclusions took into consideration all the evidence of record, to include the Veteran's STRs showing that he had undergone x-rays of the lumbar spine in December 1952, which revealed spondylolisthesis and spina bifida occulta at the first spinal segment, as well as the Veteran's complaints of low back during service. The VA examiner specifically concluded that an additional VA examination of the Veteran would not yield any further knowledge into his medical condition. The Board finds that the RO has substantially complied with the Board's September 2012 remand directives for the service connection issue decided herein. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board additionally observes that all appropriate due process concerns have been satisfied. Accordingly, the Board will proceed to a decision on the merits of the claim for service connection for a low back disability. II. Laws and Regulations 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). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the Federal Circuit recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a), such as sensorineural hearing loss. Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). Under the governing criteria, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C.A. § 1111. For purposes of aggravation of a preexisting injury, such aggravation will be said to have occurred where there is an increase of disability during active military, naval or air service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Paulson v. Brown, 7 Vet. App. 466, 468 (1995). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 C.F.R. § 3.306(b). See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service); Akins v. Derwinski, 1 Vet. App. 228, 232 (1991). In addition, temporary flare-ups, even in service, will not be considered sufficient to establish an increase in severity unless the underlying condition, as contrasted to the symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 295 (1991). Service connection may be granted for a disease, but not defects of congenital, developmental, or familial origin, if the evidence as a whole establishes that the condition was incurred or aggravated during service. VAOPGCPREC 82-90 (July 18, 1990). If there is aggravation by way of superimposed trauma, service connection on the basis of aggravation may be granted. Id. If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107 ; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. III. Legal Analysis The Veteran seeks service connection for a low back disability. He maintains that he did not have a low back disorder prior to service entrance, but that he injured his low back when he was ordered to pick-up cigarettes during boot camp. (Transcript (T.) at pages (pgs.) 4-6)). Turning to the merits of the claim, the Board finds that no back abnormalities were noted on the Veteran's August 1952 service enlistment examination report. His spine was evaluated as "normal." Thus, because no back disorder was noted at service entrance in 1952, the Veteran is entitled to the presumption of soundness with respect to his spine. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2011). In order to rebut the presumption of soundness, there must clear and unmistakable evidence that a low back disorder preexisted the Veteran's entrance into military service in December 1966 and clear and unmistakable evidence that it was not aggravated therein. VAOPGCPREC 3-03 (July 16, 2003). An August 1952 service enlistment medical examination report stated that, on clinical evaluation, the Veteran's spine was normal. Subsequently, a December 1952 service x-ray examination report stated that, on views of the Veteran's lumbar spine, there was an anterior-inferior displacement of the body of the fifth lumbar vertebra, which was consistent with first degree spondylolisthesis. A spina bifida occulta of the first sacral segment was also noted. With respect to the question of whether the evidence of record clearly and unmistakably showed that the Veteran had a low back condition that existed prior to his entry onto active duty, a September 2012 VA examiner opined that the answer was "yes." Thus, while the Veteran had a congenital defect that by its very nature preexisted military duty, a congenital/developmental defect is not a disease or injury for compensation purposes and service connection may not be established for the Veteran's spondylolisthesis, spina bifida occulta. Service connection may be established, however, if there is disease or injury superimposed on the congenital/developmental defect. After review of the record, the Board finds that the preponderance of the evidence of record demonstrates that there was no disability superimposed on the Veteran's preexisting spondylolisthesis such that service connection for the resultant disability could be granted. While the Veteran received treatment for a sore back on two (2) occasions during service in late April 1953, the STRs do not show any superimposed injury or disease to the back. single and isolated incident of treatment for muscle strain does not represent a superimposed injury or disease. This finding is consistent with the VA examiner's findings in May 2007 and July 2010 that the Veteran's spina bifida occulta was asymptomatic and "totally irrelevant and is of no clinical significance." (See May 2007 and July 2010 VA spine examination reports). This finding is uncontroverted. Thus, the Board finds that this is unfavorable evidence showing that the Veteran did not have disease or injury superimposed on the preexisting spina bifida occulta. The STRs do not show any superimposed injury or disease to the back. The STRs show that the Veteran complained of a sore back on April 24, 1953, and April 26, 1953 and that he was instructed not to perform work that required lifting. The Veteran had good motion of the entire back without muscle spasms. While an October 1956 service separation medical examination report reflects that the Veteran's spine was found to have been "abnormal," due to a "pynal sinus," This finding is consistent with the September 2012 VA examiner's opinion that the "jarring episodes such as a motorcycle accident or repetitious bending or lifting heavy objects may trigger an episode of pain and eventually some degenerative changes that are likely to occur due to natural progression and aging." This finding is uncontroverted. Thus, the Board finds that this is unfavorable evidence showing that the Veteran did not have disease or injury superimposed on the preexisting spondylolisthesis and spina bifida occulta. The Board now turns to the question of whether any other low back disorder, unrelated to the congenital spondylolisthesis and spina bifida occulta was caused or aggravated by the Veteran's period of active military service. At the close of a November 2011 VA examination, the Veteran was diagnosed with chronic low back strain, diagnosed in 1950, and osteoarthritis of the lumbar spine, diagnosed in February 2004. Following a review of the claims file and a physical examination, the examiner opined that the Veteran's low back disability was less likely than not (less than 50 percent probability) proximately due to or the result of a service-connected condition. The rationale was that information from the medical records confirmed that the Veteran had a pre-service injury and there was no information concerning an in-service injury. The above-cited VA examiner's opinion is consistent with the service and post-service medical evidence, is uncontroverted and is against the claim. The opinion was provided after a review of the claims file, to include the Veteran's service and post-service medical evidence, and clinical evaluations of the Veteran's spine. The VA examiner provided a complete rationale for his opinion, relying on and citing to the records reviewed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). There is no other opinion, private or VA, that refutes the above-cited VA examiner's 2011 opinion and that is supportive of the claim. Thus, the most probative medical evidence of record shows that there was no superimposed injury to the Veteran's preexisting spondylolisthesis, spinal bifida occulta and no relationship between any current acquired low back disorder and his period of active military service. Thus, service connection for an acquired low back disorder is not warranted. In conclusion, the Board notes that the first post-service evidence of any osteoarthritis of the lumbar spine was in 2004, service-connection for any arthritis of the lumbar spine is not warranted on a presumptive basis. 38 C.F.R. §§ 3.303, 3.307(a)(3). IV. Conclusion The Board finds the Veteran's statements alleging continuity of low back problems since service discharge in 1956 to be not credible and contradicted by the objective evidence of record. The Board acknowledges that the Veteran's spine was evaluated as "abnormal" at service discharge in 1956. However, the Veteran did not seek treatement for or mention any in-service injury to the lumbar spine when he sought treatment for his low back from R. R. D. C. in 2004. A review of Dr. R.'s records discloses that the Veteran gave a history of low back pain that began after he was involved in a job-related injury in February 2004. While not dispositive in and of itself as to the question of the Veteran's credibility, the evidence of record indicates that the Veteran did not have any low back problems until 2004. At that time, the Veteran further indicated that for the previous 40 years and at that time, he was employed full-time in an occupation that required occasional lifting of 100 pounds or greater. (See reports, prepared by R. R. D. C. dated from February to May 2004). For these reasons, the Board finds that the Veteran's statements alleging continuity of low back problems since service discharge are not credible. Maxson v. Gober, 230 F.3d 1330 (Fed Cir. 2000). The Veteran is competent to provide statements concerning factual matters of which they have firsthand knowledge (i.e., experiencing or observing manifestations of pain in the Veteran's back). See Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's assertion that his current low back problems are the result of having to pick up cigarettes during service is not competent medical evidence. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). The Veteran has not shown, nor claimed, that he possesses the medical expertise that is required to render a competent opinion as to actual diagnoses and/or medical causation. See Barr, supra; Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (finding Veteran competent to describe dry, itchy, scaling skin); but see Layno v. Brown, 6 Vet. App. 46 (1994) ((cautioning that lay testimony that Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise)). As there is no competent medical evidence of record to support the claim for service connection for an acquired low back disorder, the preponderance of the evidence is against the claim, and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a low back disability is denied. ____________________________________________ C. R. KAMMEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs