Citation Nr: 1308604 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 09-27 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1990 to October 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which in pertinent part, denied service connection for a back condition. During the course of the appeal, the Veteran's claims file was permanently transferred to the RO in Houston, Texas which now has jurisdiction over the claim on appeal. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. The Veteran did not serve in the Southwest Asia Theater of operations during the Persian Gulf War. 3. The Veteran was treated for back pain while in service. 4. A chronic back disorder was not diagnosed while the Veteran was in service. 5. Symptoms of a back disorder have not been continuous since separation from service. 6. The Veteran does not have a currently diagnosed back disability. CONCLUSION OF LAW The criteria for service connection for a back disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by a June 2008 letter. In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency. This letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. 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. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the June 2008 letter included the type of evidence necessary to establish a disability rating and effective date. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claim on appeal, VA obtained the Veteran's service treatment records. No private or VA treatment records were sought, as the Veteran specifically indicated in June 2008 that he had not received any VA treatment for his back since service and the Veteran has not indicated that he has received any private treatment. The Veteran was also offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with a VA spinal examination in January 2011 (the report of which has been associated with the claims file). The Board finds the examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. The Board thus finds the VA examination report to be highly probative and fully adequate for rating purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Laws and Regulations In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may also be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 21, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117 (West Supp. 2012); 38 C.F.R. § 3.317(a)(1) (2012). The term "Persian Gulf Veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The "Southwest Asia Theater of operations" refers to Iraq, Kuwait, Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The Persian Gulf War means the period beginning on August 2, 1990, and ending on the date thereafter prescribed by Presidential proclamation or by law. 38 U.S.C.A. § 101(33); 38 C.F.R. § 3.3(i). Based upon a review of service records, the Board finds that the Veteran is not a Persian Gulf Veteran because although he served on active duty from January 1990 to October 1992, the DD Form 214 reflects no foreign service and neither has the Veteran asserted as such. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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(b); 38 C.F.R. § 3.102. Analysis of Service Connection for a Back Disorder In a May 2008 Application for Compensation and/or Pension Benefits, the Veteran requested service connection for a chronic back condition, but he failed to provide any additional detail about such a claimed disability, such as when it onset and/or why he felt a back disability should be connected to his time in military service. In June 2008, the Veteran was asked to explain what current back disability he was seeking service connection for to which he replied that he had been living with back pain for 15 years, but he denied seeking any medical treatment for it. More importantly, the Veteran failed to identify any actually diagnosed back disability. The service treatment records do show that the Veteran was treated for back pain on two occasions in service, in February 1990 and then in October 1991. In February 1990, the Veteran complained of low back pain for one month and numbness of the left toes two weeks prior. It was also documented the Veteran had one prior history three years ago with no problems since and "getting out of pack twisted?" Upon evaluation, there was tenderness along the rhomboid, full range of motion, and no muscle weakness. The Veteran was assessed with a rhomboid strain and treated with stretches and pain medication. In October 1991, the Veteran complained of sharp middle back pain that increased with movement for one week but denied any specifically back injury. Clinical evaluation revealed tenderness to percussion and decreased range of motion secondary to pain; but there was no edema seen. The Veteran was assessed with a back strain and treated with pain medication, heat, and no range duty for 72 hours. However, an injury or treatment in service alone is insufficient to establish service connection. Rather, the evidence must show that the Veteran has a current back disability that is the progression of his in service back treatment. As will be discussed, the weight of the evidence is against a finding that the Veteran has a current back disability. There is no dispute that the Veteran sought treatment for his back on several occasions in service. However, at the time of separation from service, a May 1992 Medical Board Report revealed a normal physical examination with the exception of both knees, specifically bilateral chondromalacia patellae. As such, no back disability was shown at separation. As noted, the Veteran denied having received any medical treatment for his back since service, and his only statement in support of his claim was to the effect that he had experienced back pain for the past 15 years. However, the Veteran's report of continuous symptomatology for back pain is inconsistent with, and outweighed, by the other lay and medical evidence of record. See Charles v. Principi, 16 Vet. App. 379 (2002). At the January 2011 VA spine examination, the Veteran stated "that he has not had any lower back pain since discharge from the military in 1992 (quit carrying heavy pack)." Moreover, while he stated that the onset was in 1990, he acknowledged that his back had improved since that time. In addition, he filed a VA disability compensation claim for service connection for a right knee disorder in May 1995, within three years after separation from service, but did not claim service connection for a back disorder or make any mention of any symptomatology regarding the back. These inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since service. See Madden v. Gober, 125 F.3d 1477, 1481 (1997) (holding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza, 7 Vet. App. at 512 (upholding the Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). As a result, the Board finds the weight of the evidence does not illustrate continuous symptomatology since separation from service for the claim on appeal. More importantly, while the Veteran, as a lay person, is competent to report what comes to him through his senses, he lacks the medical training and expertise to provide a complex medical opinion, such as diagnosing a chronic back disability. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, while the Veteran is considered competent to report experiencing back pain, he is not competent to diagnose a "back disability." As noted, there are no medical treatment records showing a diagnosis of a current back disability. Nevertheless, VA did provide the Veteran with a VA examination in January 2011 to investigate whether he had a current back disability. However, the examiner after a physical examination, including imaging studies, concluded that he did not. The VA examiner performed a clinical evaluation of the Veteran's complete spine and was familiar with the Veteran's in-service treatment, as the Veteran reported having experienced pain the mid back when he twisted getting out of a pack in 1990. X-ray results showed disc space narrowing at L1-L2, but the examiner asserted that this did not actually indicate the presence of a chronic back disability, explaining that no significant clinical disease was revealed because "[g]iven the lack of symptoms and physical findings, the disc space narrowing at L1-L2 is consistent with changes of normal aging and has no specific clinical significance at the time of this exam[ination]." Following a review of the claims file, to include the documented in-service treatment for back pain, and results from the current examination, the examiner concluded the Veteran had a remote lumbar strain, but found that there were no symptoms or signs of current pathology at the time of the examination. The VA examiner went on to explain that while the Veteran was treated in service, he had denied lumbar back symptoms since discharge from the military, his physical examination was normal. As such, the examiner found no evidence of a lumbar spine disability. This opinion was provided with a full knowledge of the Veteran's medical history and after a thorough physical examination. Moreover, the examiner's opinion has not been challenged or undermined by any competent evidence. The opinion is therefore found to be highly probative and entitled to great weight. The Veteran was informed in the June 2008 VCAA letter that he must have evidence of a current disability for his claim on appeal. He has not presented any competent and probative evidence nor has he provided any information as to where VA could obtain such evidence. Since the weight of the competent medical evidence is against the conclusion that the Veteran meets the criteria for a diagnosis of a back disorder, the service connection criteria requiring the presence of a current "disability" has not been met and service connection cannot be granted. See Brammer, 3 Vet. App. at 225. For the reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claim for service connection for a back disorder, and this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a back disorder is denied. ____________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs