Citation Nr: 1313028 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 07-24 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from November 1960 to November 1963. This matters come before the Board of Veterans' Appeals (BVA or Board) from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was most recently before the Board in May 2012 and was remanded for additional development. As noted in a July 2009 Report of Contract, the Veteran no longer desires a Board hearing on this matter. 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 A low back disability was not present in service or within one year of service discharge, and there has been no demonstration by competent clinical, or credible lay, evidence of record that low back disability is etiologically related to or chronically aggravated by the Veteran's active service. CONCLUSION OF LAW Low back disability was not incurred in or aggravated by active service, nor may low back degenerative changes be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies in this case. Duty to Notify 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 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence, including that dated in July 2006 and June 2012, the Veteran was informed of the evidence and information necessary to substantiate the claim, the information required of the appellant to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. In the July 2006 letter the Veteran received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As VCAA notice was not completed prior to the initial AOJ adjudication of the claim, such notice was not compliant with Pelegrini. However, as the case was readjudicated thereafter, there is no prejudice to the Veteran in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Duty to Assist The Veteran's service treatment records are associated with the claims file, as are VA records, private medical records, and records from the Social Security Administration (SSA). The Board has considered whether the Veteran should be scheduled for a VA examination with a medical opinion regarding a possible relationship between the disability on appeal and the Veteran's military service. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As the evidence does not establish that the Veteran suffered an injury, disease or event noted during military service related to low back disability, the Board finds that affording the Veteran an examination for the purpose of obtaining an opinion concerning a possible relationship between the Veteran's low back disability and his military service is not appropriate in this case. The Board also finds that such an examination is not necessary to decide this claim as the evidence of record contains sufficient competent medical evidence to decide the claim. In this regard, the Board notes that in April 1983, nearly two decades following service, the Veteran underwent VA X-rays of the lumbar spine that revealed a normal lumbar spine. The Board finds that there has been substantial compliance with its May 2012 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In a September 1982 statement the Veteran indicated that he had gone to a Dr. Swan for his back problems in the year after his discharge and in 1966. Both the Veteran and the RO (as noted in a December 1982 letter) were unable to obtain any such treatment records. In a March 2010 letter the RO, in another attempt, notified the Veteran that he should return a supplied VA Form 21-4142, Authorization and Consent to Release Information (VA Form 21-4142), for any treatment records he wished to have VA obtain from Dr. Swan for him; no VA Form 21-4142 authorizing VA to obtain records from Dr. Swan was submitted. While in a February 2010 VA Form 21-4138 the Veteran had indicated that he had been treated for his back at the Orlando Vet Center, in June 2010 the Orlando Vet center stated that they had no records indicating that the Veteran had been their client. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Applicable Laws-Service connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1131; 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. 38 C.F.R. § 3.303(d). Where there is a 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 attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required 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." When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for certain specified chronic diseases, such as arthritis, may be established on a presumptive basis by showing that such disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Board observes that a Veteran's "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition." Odiorne v. Principi, 3 Vet. App. 456 (1992). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). The Veteran essentially contends in a February 2010 statement that he developed low back problems as a result of carrying heavy loads for prolonged periods of time during service. The Veteran asserts that upon return from serving in Korea he was placed on a light duty profile for the remaining period of his service while stationed at Ft. Benning, Georgia. The Veteran's personnel records indicate that he served at Ft. Benning from April 1963 to November 1963. Service treatment records contain no complaints or findings related to a low back problem. The Veteran's October 1963 service separation examination report indicates that the Veteran's spine was clinically evaluated as normal; the Veteran specifically denied that he had any bone or joint deformity on the corresponding Medical History Report. The Veteran's service treatment records and service personnel records contain no indication that the Veteran was placed on a physical profile during service, and the Veteran was profiled as a "1" for all body systems on the October 1963 service separation examination report. An April 1983 VA treatment record noted that the Veteran indicated that he had had low back problems for the prior 20 years; the diagnosis was low back pain with what appeared to be questionable disc disease. Lumbar spine X-rays revealed a normal lumbar spine. Subsequent VA treatment records beginning in October 2000 show reports of low back pain. A December 2012 VA ambulatory record indicates that osteoarthritis continues to be an active problem for the Veteran. A January 2006 private medical record noted that the Veteran complained of having had low back pain all his life. The impression was chronic low back pain with diagnosis of degenerative disc disease, "which is consistent with his age." A chronic low back disability was not demonstrated during the Veteran's active service, and degenerative changes of the lumbar spine were not demonstrated to a compensable degree within a year of discharge from the Veteran's active service. Finally, no competent medical evidence provides a nexus or link between a low back disorder and the Veteran's period of active service. In fact, the Veteran's private physician essentially stated that the Veteran's low back problems were related to aging. In sum, service connection for a low back disability is not warranted. The Veteran is competent to provide statements concerning factual matters of which he has first hand knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the Veteran lacks the medical training and expertise to opine that any lumbar spine disc disease or arthritis he has is etiologically related to his military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see generally King v. Shinseki, 700 F. 3d 1339 (Fed. Cir 2012). As for the Veteran's assertions of continuity of low back degenerative changes since service, while in February 2010 the Veteran indicated that he had been placed on a physical profile during service, no such record is associated with the claims file, and the Board finds that such a record would normally be of record. Kahana, 24 Vet. App. at 439 (2011) (Lance, J., concurring). In this regard, the Veteran has not asserted that his military medical or personnel records are not complete. The Board also finds that the Veteran's statements as to continuity of low back degenerative changes since service are less than credible (See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran). The Board notes that the Veteran denied that he had any bone or joint deformity at the time of his separation from service in October 1963. In short, the Board does not find that the Veteran's lay statements are sufficient to establish continuity of low back degenerative changes symptomatology for the disorder on appeal. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claim, that doctrine is not applicable. 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 low back disability is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs