Citation Nr: 1309131 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 10-34 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a back disability, manifested by low back pain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION 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). The Veteran, who is the appellant, served on active duty from February 1981 to February 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The claim was subsequently transferred to the Waco, Texas, RO. This case was previously before the Board in August 2011, when it was remanded for further development, to include a VA examination. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). The June 2009 rating decision also denied service connection for ear pain, throat pain, a pulmonary disability, and a chest injury, all of which were appealed and were included in the August 2011 remand. In October 2012, the Veteran's representative submitted a written statement withdrawing the appeals of these claims. The December 2012 Supplemental Statement of the Case advised the Veteran that the claims were considered withdrawn and adjudicated only the issue of service connection for a back disability considered herein. Inasmuch as the withdrawal of claims was submitted by the Veteran's designated representative and he has not submitted any indication that the withdrawal was contrary to his wishes, the Board deems those claims withdrawn. FINDING OF FACT A chronic back disability was not identified during the Veteran's active service or within the first year after service separation; the competent medical evidence does not support a determination that the Veteran's current back disability manifested by low back pain is causally related to his active service or any incident therein. CONCLUSION OF LAW The criteria for service connection for a back disability, manifested by low back pain, have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify Proper notice from VA must inform the claimant 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 claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the 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. VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in March 2009 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. 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 treatment 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 Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The Veteran was provided with a VA examination in July 2010. In addition, in compliance with the Board's August 2011 remand, the Veteran was provided with an additional VA examination in August 2011. These examinations contained all information needed to rate the disability. Indeed, the examiner reviewed the objective evidence of record and documented the Veteran's current complaints. Moreover, the VA examiners performed a thorough clinical evaluation, and then offered opinions as to the nature of the claimed disability, accompanied by a rationale. Therefore, the examinations are adequate for VA purposes. Thus VA has complied with the August 2011 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1131 as implemented in 38 C.F.R. § 3.303. For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for arthritis, including spondylosis, and degenerative joint disease, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). The showing of a chronic disease in service requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). 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 lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts The Veteran's service treatment records show that he was seen in April 1982 for complaints of pain in the low back after lifting a generator three days prior. The provider recommended aspirin and a warm soak. Later, in October 1982, the Veteran was seen for pain in his upper back and right shoulder of two weeks' duration. At the time of the service separation examination in January 1984, the Veteran denied any problems with his back and his examination was normal. Since service separation, the Veteran has stated that his back pain continued and that it had recently become worse. A statement by the Veteran's ex-wife, submitted in August 2009 noted that during the twenty years they were married after his military service he had complained of low back pain. The Veteran was treated in January 2008 for complaints of low back pain and an examination showed a normal spinous process but some tenderness in the right paraspinal muscle. It was the provider's opinion that the Veteran's aches and pains were likely a result of his depressed mood. The Veteran was seen at VA for reports of chronic low back pain in March 2009. X-rays taken at that time showed no evidence of spondylolisthesis, fracture, or dislocation and the Veteran's lumbosacral spine was described as unremarkable. At an informal hearing held at the RO in April 2010, the Veteran provided a history of having injured his back in Germany when lifting a generator. On July 2010 VA examination, the Veteran gave a history of injury sustained when he twisted and pulled his back while loading a generator in service. He was able to return to duty after brief treatment, but stated he had been seen for his low back problems since service. He denied any radiating pain, but reported severe flare-ups every two to three weeks after walking or prolonged activity, which could last for hours and were relieved by immobilization and rest. He also reported stiffness, but no neurological manifestations of back pain. On physical examination, he had a normal gait and posture with no evidence of spasm or guarding. He had full range of motion in his spine with no objective evidence of pain. His reflexes, sensory perception, and muscle strength were all normal on testing. The provider diagnosed lumbar strain and offered the opinion that it was less likely than not attributable to his military service, including his complaints of back pain in service. The provider based this opinion on the lack of any evidence that would support such a condition, particularly the fact that there was no pathology shown on X-ray. On August 2011 VA examination, the Veteran reported an injury in service when his back popped and caused him extreme pain. He said it had gotten a little better after treatment, but reported ongoing weakness and pain since the injury in service. He reported experiencing stiffness, weakness, spasm, fatigue, loss of motion, numbness, and erectile dysfunction connected with his back injury. Physical examination showed a normal gait and posture, with no evidence of spasm or guarding. Range of motion testing showed flexion to 60 degrees, extension to 5 degrees, lateral flexion and rotation to 30 degrees bilaterally, and no objective evidence of pain on motion or after repetitive motion. His reflexes showed decreased reactivity on testing, and his sensory perception was also reduced in the peroneal and sciatic nerve dermatomes. His muscle function and tone, however, were normal and there was no evidence of atrophy. Lasegue's sign was positive on both sides and the examiner noted that the Veteran was able to bend completely to pick up his shoes after the examination was over. The examiner stated that he did not feel the Veteran gave a good effort on range of motion testing. Spinal X-rays were reviewed and found to show no fractures or malalignment in the thoracic spine and an unremarkable lumbar spine. The examiner diagnosed a lumbar strain, which he felt was less likely than not incurred in or caused by service, to specifically include the lifting incident cited therein. The examiner explained that a muscle sprain to the lumbar spine is an acute injury which is unlikely to cause chronic back problems. The Veteran's spinal X-rays are normal, with no evidence of degenerative joint disease indicative of a chronic injury pattern or long-term problem. The Veteran's examination had been essentially normal, with the limitations of flexion shown on testing not evident in the Veteran's movement after the examination. Based on all these considerations, the examiner did not feel the Veteran has a back disability attributable to his military service. Analysis The service treatment records show that in April 1982 the Veteran was treated for back pain, but there was no finding of a back disability on separation examination. After service, the record shows treatment for back pain in 2004, 2008, and 2009, with none of the medical evidence suggesting a link to the Veteran's service. The record shows that the Veteran does not have arthritis, to include spondylolysis or degenerative joint disease, at present or at any time since service. As arthritis was not demonstrated within the first year following service separation, presumptive service connection as a chronic disease under 38 U.S.C.A. §§ 1112 and 1137 and 38 C.F.R. § 3.309 is not established. The Veteran has stated that he continued to experience back pain and stiffness after service and a written statement submitted by his ex-wife confirms these complaints. The Veteran is competent to describe symptoms he has experienced, such as pain and stiffness. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Despite these statements, however, the competent medical evidence does not link the Veteran's current complaints to his injury in service. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. In this instance, although the Veteran is competent to describe symptoms of pain, he has no special medical expertise to provide a diagnosis of a back disability of any kind or to offer an opinion linking any current back disability to an in-service injury. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Indeed, the Veteran has not submitted any competent medical evidence to suggest a causal link between the injury in service and the current back pain. None of the medical providers of record who have treated the Veteran for his back pain have diagnosed any underlying pathology nor have they indicated any connection between the current complaints and his military service. Under the law, the Veteran has the burden to establish all elements of his claim. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In contrast to the lack of positive evidence supporting service connection, there are two VA examinations and opinions which contradict the Veteran's claim. The July 2010 VA examiner offered the opinion that the Veteran's spine was normal and that there was no reason to find a nexus or causal connection between the Veteran's injury in service in 1982 and his current complaints of low back pain. The August 2011 VA examination offered a more thorough rationale, explaining that a lumbar strain is an acute injury and not of the type linked to a chronic back disability. Further, the lack of evidence of any pathology such as fracture, dislocation, or arthritis on X-ray and the Veteran's normal ranges of motion were evidence that the Veteran did not have a long-standing or chronic back disability. The Board finds these opinions to be persuasive and notes that there is no competent medical evidence which contradicts them. As the Board may consider only competent medical evidence to support its findings as to a question involving a medical diagnosis, which in this instance does not support the Veteran's claim of service connection, and as there is no favorable, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a back disability, manifested by low back pain, is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs