Citation Nr: 1308916 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 07-37 867A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a low back disability to include degenerative disc disease of the lumbar spine (hereinafter "a back disability"). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from November 1966 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota that, in relevant part, denied the claim of entitlement to service connection for a back condition. In a December 2007 statement responding to the April 2007 statement of the case, the Veteran stated that he desired to re-open his service connection claim for a back disability. Upon submission the period for timely perfecting an appeal had not expired, and the RO accepted this statement in lieu of a substantive appeal. See 38 C.F.R. § 20.203 (2012). This claim was previously remanded by the Board in February 2010, April 2010, March 2012 and June 2012 for further evidentiary development. Such development has now been completed and appellate review may proceed. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2012. A written transcript of this hearing has been prepared and incorporated into the evidence of record. FINDINGS OF FACT The Veteran does not suffer from a back disability that manifested during, or as a result of, active military service. (CONTINUED ON NEXT PAGE) CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and 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 Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 556 U.S. 396 (2009). In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id. A letter sent to the Veteran in October 2006 addressed all notice elements listed under 3.159(b)(1) and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran received a VA medical examination in August 2010, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. VA treatment records from as recently as June 2012 have also been incorporated into the Virtual VA paperless claims processing system. Copies of private treatment records have also been incorporated into the claims file. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, the Board finds there has been substantial compliance with its remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) attempted to obtain records from the Balboa Naval Hospital. However, an August 2009 search revealed that no records were available. A Formal Finding of Unavailability was issued by VA in August 2009. An additional attempt was made in April 2010, but another Formal Finding of Unavailability was issued in May 2011. The AMC also scheduled the appellant for a medical examination, which he attended. Finally, during his May 2012 hearing, the Veteran asserted that the Balboa Naval Hospital had changed its name to the Naval Medical Center in San Diego, California. VA was able to obtain records from this facility and they have been incorporated into the claims file. The AMC later issued a Supplemental Statement of the Case (SSOC) and obtained an addendum to the May 2012 VA examination report. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Relevant Laws and Regulations 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). 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 requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). Facts and Analysis The Veteran contends that he is entitled to service connection for a back disability. Specifically, the Veteran has asserted that he injured his back in 1968 or 1969 during a refueling accident. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's chronic back disability did not manifest during, or as a result of, active military service, but rather as a result of post-service injuries. As such, service connection for a back disability is not warranted. The Veteran's service treatment records do not reflect that he suffered a chronic back disability or any symptomatology associated with the back during active military service. In April 1969, the Veteran was seen for right lower quadrant pain. This was diagnosed as acute appendicitis. The Veteran was again seen for right lower quadrant pain in November 1969. One record suggests that this was associated with a nonreducable right scrotal hernia. However, upon admission, this was noted to be a hydrocele of the right cord. Surgery was performed at this time. There is no mention of associated symptomatology involving the back at this time. In fact, the Veteran denied back pain during a November 1969 evaluation. A February 1969 record from the Naval Medical Center notes that the Veteran was "acutely ill." An evaluation revealed the Veteran's back to be "normal." The Veteran was subsequently diagnosed with left lower lobe pneumonia, and a record from several weeks later notes some low back pain, as well as a recurrent fever and headaches. However, no diagnosis was made regarding the Veteran's back pain and the record contains no further evidence of back pain during service. An evaluation of the Veteran's spine was also deemed to be normal during the August 1970 separation examination. As such, there is no in-service evidence of an injury to the back or a chronic disability of the back during military service. Likewise, post-service evidence fails to suggest that the Veteran's current back complaints manifested during, or as a result of, active military service. The first post-service evidence of back symptomatology is a February 1996 private medical record signed by a physician with the initials S.R.R. According to this record, the Veteran's medical history was notable primarily only for a motor vehicle accident in December 1995 in which he suffered a low back injury. There was no mention of back problems prior to this accident, and the Veteran specifically endorsed back pain since the accident. He noted that it had been getting better recently. Another February 1996 record also notes right back pain since a motor vehicle accident in December. Finally, a March 1996 record signed by Dr. R reflects a history of a motor vehicle accident in December 1995 with residual right back discomfort. None of these records suggest that the Veteran had been suffering from back pain for more than 20 years prior to this accident. The record contains no further evidence of treatment or complaints for the back until May 2006. A VA treatment record reflects that the Veteran twisted his back while shoveling dirt that morning. The Veteran reported severe low back pain that radiated into his right leg. The pain was so severe the Veteran had to lower himself to the floor. A magnetic resonance image (MRI) revealed a pseudoarthrosis of the right transverse process of L5. It was noted that this had been seen on previous radiographs. There was also narrowing at the L4-5 and L5-S1 disc spaces. A posterior disc extrusion was visualized at L3-4 and a posterior disc bulge was at L4-5. Again, none of these records suggest a history of back pain stretching back to 1970 or earlier. The Veteran was also afforded a VA examination of the spine in August 2010. The Veteran reported that either in 1968 or 1969, while he was refueling on a ship, the refueling gear fell. The Veteran tried to hang onto it and felt immediate low back pain. He reported that he was treated on the ship but was just given pain medication. He also indicated that he developed a hernia as a result of this injury. The Board notes that service treatment records do reflect a nonreducible scrotal hernia in November 1969. However, back symptomatology is not reflected in these records. The examiner reviewed the evidence of record in addition to examining the Veteran, and concluded that he suffered from lumbar degenerative disc disease. The examiner opined that the current condition was not a result of events which occurred while in the military, nor was it aggravated by such events. The examiner explained that service records did not reflect treatment for a low back condition and there was no documentation within one year following discharge from the military. A May 2006 MRI was also performed following complaints of acute low back pain. The examiner reviewed these findings and concluded that they were consistent with degenerative disc disease with disc extrusion on the left side. These MRI findings were not consistent with the Veteran's subjective complaints which were all on the right side. As such, the examiner opined that the Veteran's current condition was more likely as not a result of age-related changes. An addendum to the above examination was prepared in September 2012. The examiner reviewed the Veteran's service treatment records, including records from the Naval Medical Center in San Diego, California. The examiner also reviewed the post-service medical records obtained in the claims file. The examiner opined that it was less likely as not that the Veteran's low back disability had its onset during service, or, that it was caused by or related to any incident noted in service, to include the Veteran's claimed twisting injury. The examiner explained that service records clearly did not show medical evidence of a twisting injury or any other type of injury to the lower back while in the military. While there was reference to low back pain on one occasion, the associated records revealed that this was associated with a urinary tract infection. The examiner explained that this was a common symptom of this condition. It is not until 1995, some 25 years after service, that there is documentation of low back pain. This was secondary to a motor vehicle accident. There was also evidence of back pain following a twisting injury in 2006. Finally, the examiner noted that the Veteran had a long-term occupation which required lifting and carrying of heavy loads. The examiner indicated that her opinion from the previous examination had not changed. Lumbar degenerative disc disease was more likely as not a result of several factors, including an intervening and interceding event of a motor vehicle accident, age-related changes and the Veteran's civilian occupational duties. His current condition was not a result of events which occurred during service. The record does not reflect that the Veteran has continued to seek treatment for his low back pain. However, a January 2008 record does note that the Veteran was now complaining of chronic low back pain. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for a low back disability. The Veteran's service treatment records do not reflect that he was treated for a back injury. While the Veteran did report low back pain on one occasion, the VA examiner of record explained that this was in fact associated with a urinary tract infection. The Veteran denied suffering from back pain in November 1969 and an evaluation of the spine was also deemed normal during the August 1970 separation examination. It is not until some 25 years after separation from service that there is evidence of back pain, and this was associated with a motor vehicle accident in December 1995. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence). In the present case, the absence of complaints or treatment associated with the spine for approximately 25 years after service tends to suggest that the Veteran has not suffered from chronic symptomatology since his separation from active duty. Furthermore, the VA examiner of record explained that it was less likely than not that the Veteran's current low back disability manifested as a result of an in-service injury. The only in-service notation of low back pain was related to a urinary tract infection. The Veteran's back was found to be normal upon separation from active duty and there was no further evidence involving the back until the intervening motor vehicle accident of 1995. Therefore, the examiner concluded that it was more likely that it was due to a number of factors, including the motor vehicle accident of 1995 and the general aging process. As such, the preponderance of the evidence of record demonstrates that the Veteran is not entitled to service connection for a low back disability. The Board recognizes that the Veteran believes he is entitled to service connection for a low back disability. During his May 2012 hearing, the Veteran testified that he suffered low back pain at the same time he incurred his hernia. A review of records from the Naval Hospital confirms that the Veteran suffered a hernia during active military service. While the Veteran is competent to testify to experiencing back pain at this time, the Board does not find his recent assertion of chronic back symptomatology since this time to be credible. There is no record of complaints involving the spine until a motor vehicle accident of 1995. The records make no mention of a preexisting back disability that had existed for some 25 years at this time. There is no evidence of further treatment involving the spine until the Veteran suffered an additional injury in 2006 while shoveling dirt. Again, there is no indication in the treatment records that the Veteran had been suffering from chronic back pain for the past 36 years at this time. The Veteran also stated during his May 2012 hearing that the back pain he experienced in the past was actually "on and off." The Board recognizes that the Veteran also testified that he self-medicated his back and that this explained the lack of medical evidence. However, this does not change the fact that the Veteran explicitly denied suffering from back pain in November 1969. An evaluation of his back was also deemed to be normal during his August 1970 separation examination. Considering all of this evidence in its totality, the Board finds the medical evidence of record to be more probative in this case, as the Veteran's recent assertions of chronic symptomatology since the late 1960s to lack credibility. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for a low back disability to include degenerative disc disease of the lumbar spine must be denied. ORDER Service connection for a low back disability to include degenerative disc disease of the lumbar spine is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs