Citation Nr: 1310488 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 10-12 828 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease and spinal stenosis. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1970. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2009 rating decision in which the RO denied service connection for a lumbar spine disability. In September 2009, the Veteran filed a notice of disagreement (NOD) as to the denial. The RO issued a statement of the case (SOC) in January 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2010. In July 2012, the Board remanded the Veteran's claim to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After taking further action, the AMC, in a December 2012 supplemental SOC (SSOC)), continued to deny the claim and returned the matter to the Board for further appellate consideration. In January 2013, this matter was returned to the Board for further appellate consideration. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Although service treatment records indicate that the Veteran suffered a spine injury, there is no credible evidence of chronic lumbar problems during, or continuing, since service; current lumbar spine disability (assessed as degenerative joint and disc disease with spinal stenoisis) was first manifested nearly 40 years after his discharge from service; and the only competent, probative opinion to address whether there exists a medical nexus between current spine disability and service weighs against the claim. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant 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, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a May 2009 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. This letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The August 2009 rating decision reflects the initial adjudication of the claims after the issuance of this letter. Hence, the May 2009 letter-which meets the content of notice requirements described in Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement. Subsequent to the Board's July 2012 remand, the Veteran was sent another notification letter, reiterating the above notice requirements, effectively soliciting any additional evidence from the Veteran he wished to submit to substantiate his claim. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent evidence associated with the claims file consists of the Veteran's service records, VA medical treatment records, and a July 2009 VA examination report. Additional missing VA treatment records, identified in the Board's July 2012 remand, have since been associated with the Veteran's Virtual VA claims file. Also of record and considered in connection with the appeal are written statements provided by the Veteran and by his niece. The Board finds that no additional RO action to further develop the record in connection with this claim, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claim decided herein, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. at 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran seeks to establish service connection for a lumbar spine disability. In statements of record, he asserts that his disability stems from an automobile accident during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served 90 days or more during a period of war or after December 31, 1946, and arthritis becomes manifest to a degree of l0 percent within 1 year from 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, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). As an identified chronic disease, arthritis may be subject to service connection based upon a showing of continuity of symptomatology. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Considering the record in light of the above-noted legal authority, the Board finds that service connection for a lumbar spine disability is not warranted. Service treatment records document initial treatment for a spinal injury sustained in a January 1968 automobile accident. Aside from a notation of a stinging scar on the Veteran's back in August 1968, service treatment records show no further treatment for back-related symptoms. During the Veteran's July 1970 separation examination, his spine was found to be normal upon clinical evaluation, and the Veteran declared, "I am in good health." In August 2005, the Veteran filed a claim for hearing loss and tinnitus, but did not then note any complains pertaining to the lumbar spine. Moreover, the Veteran was silent with respect to any lumbar spine complaints when he first sought treatment at the VA in October 2005. In fact, the Veteran was treated several times from 2005 to 2008 for unrelated health problems before mentioning low back pain in November 2008. The Veteran then reported that he had experienced problems with his lower back since the aforementioned in-service automobile accident. He filed the instant claim in May 2009. In connection with a July 2009 VA examination, the examiner found that the Veteran's lumbar spine disability was not related to his in-service injury. After examining the Veteran and reviewing his claims file and medical history, including his in-service automobile accident and the treatment for his resulting back injury, the examiner diagnosed lumbar degenerative disc disease and lumbar spinal stenosis. The examiner opined that it was less likely than not that the Veteran's lumbar spine disability was related to his in-service automobile accident. The examiner further noted that degenerative disc disease and degenerative arthritis were consistent with the normal aging process, he reasoned, and, although the Veteran began seeking medical treatment for another ailment in October 2005, he did not complain of lumbar spine symptoms until November 2008. Subsequent to the July 2009 VA examination, the Veteran began receiving regular treatment for lumbar spine symptoms; however, at no point has a treating physician attributed his lumbar spine disability to an in-service event. The August 2012 statement from the Veteran's niece pertains only to the current problems the Veteran experiences with respect to his Veteran's back, to include constant pain. In connection with the current claim, the Veteran has alleged that he had problems associated with his in-service injury that continued in and after service and became progressively worse. The Board recognizes that the Veteran is competent, as a layperson, to report that about which he has personal knowledge, to include his own symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, such report must be weighed against the medical and other evidence. Cf. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Here, the Board finds the Veteran's statements regarding his purported continuity of lumbar spine symptoms since the injury documented in his service records are not credible and, thus, cannot serve to provide a basis for a finding of service connection for current lumbar spine disability. As indicated above, the Veteran's service treatment records are silent for any lumbar spine complaints, save for his initial injury, and show that his lumbar spine was clinically evaluated as normal at service separation in July 1970. The report does not in any way indicate that the Veteran complained of lumbar spine pain. It would be reasonable to assume that the Veteran would have reported such pain at that time if he was in fact experiencing it. Additionally, although the Veteran began seeking VA treatment in October 2005, there is no mention of lumbar spine pain until November 2008. Moreover, the first documented diagnosis of lumbar spine disability, to include degenerative joint disease, or arthritis, is reflected in the July 2009 VA examination report. In essence, there is no documented evidence of a lumbar spine disability for approximately 38 years after the Veteran's discharge from service. As there is no competent evidence of arthritis within one year of discharge, the in-service incurrence of arthritis may not be presumed. The Board also points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The Board acknowledges the Veteran's assertions that he was able to manage his back pain with over-the-counter medication in the first few years after service, and, separately, that he could not initially afford to seek medical treatment. See May 2009 and August 2012 statements. However, the fact remains that there is no indicia whatsoever of any chronic lumbar spine problems until nearly 40 years after service. Moreover, even when the Veteran begin seeking medical treatment with VA, he did not initially complain of any lumbar spine problems. Significantly, VA treatment records prior to 2008 are completely silent with respect to any lumbar spine complaints. Again, if the Veteran was experiencing continuing lumbar spine problems, it would be reasonable to assume that he would have sought treatment for them sooner, or, at least, reported them when he began receiving medical treatment. Rather, the first documented complaints with respect to the lumbar spine disability are not until 2008, three years after he first sought VA treatment in 2005. These discrepancies weigh against the credibility of the Veteran's current assertions of experiencing continuing lumbar spine symptoms since the January 1968 injury. Furthermore, there is no medical evidence or opinion even suggesting that there exists a medical nexus between the lumbar spine disability diagnosed many years after service, and the injury referenced in service treatment records. On the contrary, after reviewing the claims file, taking a thorough medical history from the Veteran, and examining the Veteran, the VA examiner opined that the Veteran's current lumbar spine disability was not related to service, and offered a rationale for that opinion. The Board accepts this opinion as probative of the medical nexus question. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). Importantly, neither the Veteran nor his representative has presented or identified any contrary medical evidence or opinion-i.e., medical evidence or opinion that actually supports the claim. Furthermore, to whatever extent the Veteran and/or his representative attempt to assert that there exists a medical relationship between current lumbar spine disability and service on the basis of lay assertions, alone, such assertions provide no persuasive support for the claim. The Board notes that the matter of the etiology of the complex medical disability (not capable of lay observation) here at issue is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran and his representative are not shown to be other than laypersons without the appropriate training and expertise, neither is competent to render a probative (i.e., persuasive) opinion on the medical matter upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, on these facts, lay assertions of medical nexus have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for a lumbar spine disability must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as a preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a lumbar spine disability, to include degenerative disc disease and spinal stenosis, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs