Citation Nr: 1310087 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 05-17 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a low back disorder with arthritis. ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1950 to August 1954. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2004 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied the claim on appeal. The Veteran filed a notice of disagreement (NOD) with this determination in January 2005, and timely perfected his appeal in May 2005. In July 2006 and October 2012, Board remanded the issue on appeal for further examination. That development has been completed and the issue of service connection for a back disorder is ready for appellate review 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 currently diagnosed low back disorder did not have its onset in service and is not otherwise related to service. CONCLUSION OF LAW The criteria for a grant of service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 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 FINDING AND CONCLUSION I. Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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, if any, of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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 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 agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was satisfied by way of letters sent to the Veteran in May 2004 and August 2004 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letters informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. The March 2008 letter also provided notice regarding how disability ratings and effective dates are assigned if service connection is awarded. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although this last notice was delivered after the initial denial of the claim, the AOJ subsequently readjudicated the claim based on all the evidence in the June 2009 and February 2013 supplemental statement of the case (SSOC). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Thus, the Veteran was not precluded from participating effectively in the processing of his claim and the late notice did not affect the essential fairness of the decision. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board recognizes that, under VA's governing regulations, it is obligated to make reasonable efforts to assist an appellant in obtaining evidence necessary to substantiate his claim, including any "relevant records" in the custody of VA or another federal agency. 38 C.F.R. § 3.159(c)(2). However, with respect to the Veteran's claim of service connection for a low back disorder, the Board observes that the duty to assist is not boundless in scope, and VA is only required to make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. VA is not required to assist him in obtaining identified records if no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(c)(1); Golz v. Shinseki, 590 F.3d 1317, 1321-22 (Fed. Cir. 2010). Additionally, the Board notes that although VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this particular case, on the November 1971 application for VA benefits, the Veteran reported that he received treatment for right lumbar pain after chopping wood in February 1960 and for degenerative disc disease in December 1970. In July 2006, the Board remanded the claim of service connection for a low back disorder in order to obtain these outstanding private treatment records. The Appeals Management Center sent the Veteran a March 2008 letter requesting any information pertaining to private treatment he received in relation to his low back disorder; however, the Veteran failed to respond to this inquiry. Additionally, the Board acknowledges that the RO is required to obtain Social Security Administration (SSA) records prior to adjudicating an appellant's claim in compliance with its duty to assist. See Murinscak v. Derwinski, 2 Vet. App. 363 (1992); 38 C.F.R. § 3.201(a) (2012). In this case, however, the Veteran's SSA records have been determined to be unavailable. Pursuant to the Board's prior remand, the Appeals Management Center (AMC) requested a complete copy of the Veteran's records from SSA. An October 2012 response from SSA determined that the Veteran's records from that agency had been destroyed. The AMC sent the Veteran an October 2012 letter informing him that they were unable to obtain his SSA records, and asking him to provide a copy of any SSA records in his possession; however, the Veteran failed to respond to this inquiry. In a November 2012 memorandum, the AMC made a formal finding of unavailability of SSA records, noting all efforts made to obtain these records. Accordingly, there was a reasonable effort made to assist the Veteran in obtaining any outstanding records. Thus, the Board finds that further efforts to obtain any records would be futile, and a remand for this purpose is not warranted. Sabonis v. Brown, 6 Vet. App. 426 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided); VAOPGCPREC 5-04 (2004), 69 Fed. Reg. 59,989 (2004). 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 RO has obtained the Veteran's service treatment records and private treatment records, and afforded the Veteran a VA examination in April 2009. The record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran 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). II. Service Connection Legal Criteria 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; 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). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 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 disease was incurred in service. Certain listed disabilities, to include arthritis, may be presumed to have been incurred during active military service if manifested to a degree of 10 percent within the first year following 90 days or more active service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Analysis The Veteran contends that his low back condition had its onset while on active duty. Specifically, the Veteran reported that while aboard the USS General William Mitchell, he was loading heavy boxes when he injured his back. The Veteran's November 1950 enlistment, August 1954 discharge, and September 1955 re-enlistment examinations found no spinal conditions or musculoskeletal abnormalities. July 1954 service treatment records documented that the Veteran complained of soreness and pain in the small of his back on two separate occasions, where temporary light duty was noted. The file also contained an October 1963 letter from the Veteran discussing his low back discomfort. On the November 1971 application for VA benefit, the Veteran reported that he received treatment for right lumbar pain after chopping wood in February 1960 and for degenerative disc disease in December 1970. As noted above, there was a reasonable effort made to assist the Veteran in obtaining any outstanding records. The Veteran failed to respond to the March 2008 letter requesting any information pertaining to private treatment he received in relation to his low back disorder. Thus, the Board found that further efforts to obtain any records would be futile, and a remand for this purpose was not warranted. The Veteran underwent a VA examination in August 1987. He was diagnosed with low back syndrome with moderately restricted movements. He also had two plus pain and one plus tenderness over the right sacroiliac joint. X-ray reports showed degenerative changes with narrowing of the L4-5 and L5-S1 intervertebral disk spaces, degenerative changes of the sacroiliac joint, and narrowing of the L2-3 intervertebral disk space. The Veteran was afforded a VA examination in March 2009. The examiner noted the Veteran's in-service records documenting low back discomfort. The Veteran reported that when he was discharged from the military, he had episodes of backaches following heavy lifting episodes. The Veteran reported that he was drunk for four to five months after being discharged, and then went to work in a mine. He stated that this job lasted a very short time until he hurt his back again, and did not work since that time in 1954. The examiner stated that the Veteran had multiple degenerative spondylosis, but that it was from a function of time, and not one specific moment of injury. As the spine wears out, there are going to be momentary episodes of acute flare-ups of pain, but nothing specifically was caused by any of the lifting episodes that the Veteran alleged caused his back pain to be permanent. Unfortunately, the levels of total lumbar spine had worn out and he had ongoing chronic discomfort; however, he was using no specific treatment and requiring none, at least according to his current history. The evidence that he had some backache and acute flare-ups with residual are in the c-file, however, this was not a black and white answer as to cause and effect, but just an ongoing unfortunate lumbar spondylosis that degenerates over time. There were flare-ups a couple of times documented in-service and then in the mines where he was working, but nothing really that could cause permanency other than temporary exacerbation of the back discomfort. The examiner concluded that he could not state that the Veteran's spondylosis was only caused by an episode or two on active duty, but there was certainly no question that he did have some episodes of low back discomfort that seemed to resolve while on active duty. The Board finds that the weight of the competent evidence shows that the Veteran is not entitled to service connection for a low back disorder. Although he has a current diagnosis of low back disorders, to include spondylosis and degenerative disc disease, the existing medical evidence does not show that this condition was manifested in service, or is otherwise related to service. The Board has carefully considered the Veteran's assertions that his reported low back disorder is related to his active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, service connection for a low back disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board notes the Veteran has not asserted that he has experienced symptoms of arthritis since his period of military service, but only that the current low back condition had its onset therein. Moreover, the April 2009 VA examiner stated that the Veteran had multiple degenerative spondylosis, but that it was from a function of time, and not one specific moment of injury. As the spine wears out, there are going to be momentary episodes of acute flare-ups of pain, but nothing specifically was caused by any of the lifting episodes that the Veteran alleged caused his back pain to be permanent. The examiner concluded that the Veteran had some episodes of low back discomfort in-service that seemed to resolve while on active duty. The VA examiner's opinion is based on review of the claims folder, including the Veteran's service treatment records, and his opinion thoroughly discusses the Veteran's pertinent in- service and post-service medical records. The VA examiner offered a detailed explanation of the rationale for the opinion that incorporates both the facts of the Veteran's case and the pertinent medical principles. Given the VA examiners access to the claims folder and the thoroughness and detail of his opinion, the Board finds this opinion to be more probative than the Veteran's assertions to determining whether service connection for a low back disability is warranted. In reaching the decision above the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against entitlement to service connection for a low back disorder the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disorder with arthritis is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs