Citation Nr: 1313032	
Decision Date: 04/18/13    Archive Date: 05/02/13

DOCKET NO.  11- 00 145	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to service connection for low back disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Osegueda, Associate Counsel


INTRODUCTION

The Veteran had active service from October 1978 to June 1980, and a period of active duty for training (ACDUTRA) from March 27, 1977 to August 1, 1977.

This matter initially came before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Winston-Salem, North Carolina.  In that decision, the RO, in pertinent part, denied service connection for a low back disorder.  Subsequently, the New York, New York, RO assumed jurisdiction.  

In October 2011, the Veteran testified before the undersigned via a videoconference hearing.  A transcript of the hearing is associated with the claims file.

In February 2012 and November 2012, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC), for further development.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the documents in such file reveals VA treatment records, dated from April 2010 to December 2012.  The AMC reviewed these documents in the February 2013 supplemental statement of the case (SSOC) and the Board will consider them as well.

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

Low back disability did not manifest during ACDUTRA or in service, arthritis did not manifest within the one year presumptive period following service, and current low back disability is unrelated to service or ACDUTRA.


CONCLUSION OF LAW

Low back disability was not incurred in or aggravated by service or incurred in ACDUTRA and arthritis may not be presumed to have been so incurred.  38 U.S.C.A. §§ 101, 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.303., 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

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, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In October 2008, the RO notified the Veteran of the evidence needed to substantiate the claim for entitlement to service connection for a low back disorder.  The letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim.  73 Fed. Reg. 23,353 (Apr. 30, 2008).  In any event, the letter sent to the Veteran complied with this requirement.

Additionally, the Veteran was notified of all other elements of the Dingess notice in the October 2008 letter.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4). 

In this case, VA obtained the Veteran's service treatment records from his periods of active duty service and ACDUTRA, all of the identified post-service VA treatment records, and Social Security Administration (SSA) records.  

In November 2012, the Board remanded the claim to the RO/AMC to contact the Veteran and request that he identify any the specific names, addresses, and approximate dates of treatment for all health care providers who provided treatment for his low back disorder.  The RO/AMC was directed to provide the information and authorization forms for the procurement of treatment records from Newport News General Hospital, Hampton General Hospital, and Elmer's Hospital.  

In a December 2012 letter, the AMC noted that the Veteran indicated that he had received treatment at various medical facilities, including Newport News General Hospital, Hampton General Hospital, and Elmer's Hospital.  He was instructed to identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his low back disorder.  He was also provided a VA Form 21-4142, Authorization and Consent to Release Information, and he was instructed to return a separate form for each private health care provider so VA could obtain treatment information.  He was also notified that he could obtain and submit copies of the private treatment records himself.  

The AMC noted that there was no response from the Veteran as of January 2013.  It therefore was not required to take additional action pursuant to its duty to assist.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street"); 38 C.F.R. § 3.159(c)(1)(i),(ii) (requiring claimant to cooperate fully with VA's efforts to obtain non-Federal records, including providing identifying information and authorization for release of records).

Additionally, in the November 2012 remand, the RO/AMC was directed to obtain any outstanding VA treatment records from the Bronx VA Medical Center (VAMC).  A review of the electronic record reveals VA treatment records from the Bronx VAMC, dated from April 2010 to December 2012, have been associated with the record.

VA's duty to assist includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  In this case, the Veteran was afforded VA examinations pertaining to his low back disability in June 2009.

In the February 2012 remand, the Board directed the RO/AMC to obtain the Veteran's SSA disability determination and the records associated with the determination, and submit the records to the June 2009 VA examiner for further review and an additional opinion, if deemed necessary.  The examiner provided the requested addendum opinion in May 2012.  For the reasons shown below, the examination and opinion were adequate and the RO/AMC substantially complied with the Board's February 2012 and November 2012 remand instructions.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The claim for entitlement to service connection for a low back disorder is thus ready to be considered on the merits.

Laws and Regulations

As an initial matter, the Board notes that the Veteran did not engage in combat with the enemy and does not claim his back disability is combat related.  Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable.

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a).

Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected.  If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required.  Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

"Active military service" is defined by VA law and regulations.  Active military, naval, or air service includes active duty, any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty.  See 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a).  Active military, naval, or air service also includes any period of inactive duty training INACDUTRA during which the individual concerned was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training.  Id.  Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA.

National Guard service generally includes periods of ACDUTRA and/or INACDUTRA.  ACDUTRA includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law.  See 38 U.S.C.A. § 101(22)(C); 38 C.F.R. § 3.6(c).  INACDUTRA includes service with the Army National Guard of any State (other than full-time duty) under section 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law.  38 U.S.C.A. § 101(23)(C); 38 C.F.R. § 3.6(d).

The fact that a claimant has established status as a "veteran" for purposes of other periods of service (e.g., the Veteran's period of active duty) does not obviate the need to establish that the claimant is also a "veteran" for purposes of the period of ACDUTRA or INACDUTRA where the claim for benefits is premised on that periods of ACDUTRA OR INACDUTRA.  See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998).

The Board will address the issue of whether a claimed disability resulted from disease or injury incurred in or aggravated while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA where such a theory is raised by the evidence of record.  See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (in direct appeals, all filings must be read in a liberal manner); EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (Board must review all issues reasonably raised from a liberal reading of all documents in the record).  In this case, the record contains evidence that shows that the Veteran was called to active duty for training from March 27, 1977 to August 1, 1977 for boot camp.  


Factual Background and Analysis

The Veteran contends that he injured his low back during a period of ACDUTRA for boot camp in May 1977.  

A May 1977 service treatment note shows that the Veteran complained of back pain and he had tenderness with movement.  The diagnosis was lower back strain.  

The Veteran filed his original claim for VA benefits, to include service connection for a low back disability, in October 2008.

A September 2006 private emergency department treatment record showed that the Veteran was treated for right groin and hip pain after falling approximately 12 to 15 feet off of a ladder and landing on his left side.

Post-service VA treatment records show complaints of low back pain.  In a January 2008 VA treatment note, the Veteran complained of a history of low back pain for 25 to 30 years; however, he also reported that he had recently fallen 12 feet off of a roof and landed on his left hip.  

In a May 2008 VA telephone note, the Veteran requested a back brace.  He indicated that he previously wore a back brace that he purchased over-the-counter.

In an October 2008 VA treatment note, the Veteran complained of low back pain and the examiner noted that the Veteran had a history of a fall approximately one year ago.  

October 2008 VA x-rays of the lumbosacral spine showed "very mild oseophytic spurring."  There was also joint space narrowing at L1-2 and L5-S1, and grade I retrolisthesis of L5 on S1.  The interpreting radiologist noted that the Veteran had a history of a fall approximately one year ago and that he had chronic low back pain.

During a November 2008 SSA disability examination, the Veteran complained of chronic back pain with limited mobility since June 2006 after he fell and sustained an injury.  

In a February 2009 VA physical therapy treatment note, the Veteran reported that he had a five year history of back pain.  He noted he had past trauma to the area from falling off of a roof and from using a harness and carrying tools in a pouch during his employment as a carpenter.  

In a May 2009 SSA disability examination, the examiner noted that the Veteran reported that he was injured in a September 2006 fall and that he had back pain since that time.  

In a June 2009 VA mental health referral for a compensated work therapy consultation, the examiner noted that the Veteran was a carpenter and worked in construction for many years.  He also noted that the Veteran reported that he fell through a roof in 2006, hurting his back, and he needed a job that would not require him to carry heavy tools.

During a June 2009 VA spine examination, the Veteran reported that he had low back pain that began in 1978.  He reported that he strained his back during basic training.  He stated that he was back to duty three days after the injury and he had no additional problems with his back during service.  He also indicated that he injured his back in a fall while working approximately three years ago.  He stated that he had a lot of back problems since that time.  The diagnosis was degenerative disc disease of the lumbosacral spine.  The examiner opined that the Veteran's current low back disability was not caused by or the result of his back strain in service.  The examiner noted that the back strain in service was a "self limited" back problem and the Veteran had no chronic back problems until he injured his back in the fall three years ago.

During VA treatment in September 2009, the Veteran reported that he had chronic low back pain due to an injury in service.

In a May 2010 VA treatment note, the Veteran reported that he had recurrent chronic low back pain since he twisted and injured his back during basic training.  He also noted that he had a left hip injury from a fall from a roof approximately three years ago.

A subsequent May 2010 VA neurology note included magnetic resonance imaging (MRI) study results which showed mild to moderate spinal epidural lipomatosis and mild degenerative changes of the lower lumbar spine.  The diagnosis was chronic low back pain syndrome.  The neurologist noted that a lipoma probably contributed to his pain, but his back pain may also have been related to his obesity and possible radicular pathology.

A September 2010 VA treatment note included the following comment from a VA neurosurgeon after a consultation with the Veteran: "Epidural lipomatosis is best treated with aggressive weight loss.  The [Veteran] should have a trial of weight loss before considering surgical options."

In August 2010, the SSA awarded the Veteran disability compensation for chronic low back pain.

During the October 2011 hearing, the Veteran testified that he injured his back in boot camp when a drill sergeant was rushing him off a cattle truck.  He stated that he was the last one loaded onto the truck and when they disembarked, he missed a step, falling off of the truck, and the other trainees stepped on his back, neck, and arm, trampling him on their way out of the truck.  He reported that he had continuous back problems since he left service.  As to his 2006 fall from a roof, the Veteran testified that he fell on his hip and his spine did not bother him as a result of the fall. 

In a May 2012 VA examination addendum, the June 2009 VA examiner noted that the SSA records were reviewed.  The examiner stated that the additional records offered no conflicting evidence; rather, they showed that the Veteran had a current back problem.  Therefore, the examiner opined that the Veteran's claimed low back disorder was less likely as not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.  The examiner noted that medical records showed the Veteran had a diagnosed back strain in 1978 with return to duty and no additional entries pertaining to back problems, including during the separation examination.  The examiner also noted the October 2008 VA x-rays which indicated that the Veteran had a history of a "fall about a year ago."

For the following reasons, the above evidence does not warrant entitlement to service connection.

Initially, the Board notes that it is not established or claimed that the Veteran's claimed low back disorder was manifest during his period of active duty service from October 1978 to June 1980.  The Board also notes that arthritis was not manifest within one year of separation from his period of active duty service.  Rather, a March 1980 separation examination disclosed that the spine was normal and the Veteran reported that his health was good.  There is also no lay or medical evidence or claim that current low back disability is related to the period of active duty service.  In the absence of disease or injury during his period of active duty service and no evidence otherwise linking current back disability to service or the presumptive period, service connection is not warranted based upon the period of active duty service.

As to the period of ACDUTRA, the Veteran is competent to testify as to his observations, but this testimony must be weighed against the other evidence of record.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  The Veteran's testimony that he suffered a back injury during ACDUTRA is competent and credible and is supported by the contemporaneous May 1977 service treatment record indicating complaints of back pain and diagnosis of lower back strain.  The evidence also includes diagnoses of multiple current back disabilities, including degenerative changes which are indicative of the chronic disease of arthritis.  The preponderance of the competent, credible evidence is, however, against a nexus between current disability and ACDUTRA.

Although the Veteran has stated that that he has had continuity of back symptomatology since service and is competent to do so, the Board finds that this testimony is not credible because it conflicts with the other evidence of record, including the Veteran's more contemporaneous statements.  Most significantly, in the October 1978 report of medical history prepared at the time of his service entrance examination the Veteran specifically indicated that he did not have and had not previously had recurrent back pain.  The Board finds that this statement made in 1978 (after the ACDUTRA back symptoms) to health care personnel is of greater probative weight than the Veteran's later statements made during an appeal from the denial of compensation benefits.  See Pond v. West, 12 Vet. App. 341, 345 (1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony).  See also Fed. R. Evid. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")).  In addition, both the October 1978 entrance examination report and March 1980 separation examination report reflect that the spine was normal.  The Board also notes that, post service, the Veteran has been inconsistent when reporting the onset of symptoms.  At times he has reported an onset during basic training, and at other times, he has implied that he has had symptoms since his September 2006 fall.  The Veteran's lay statements as to continuity of back symptomatology are therefore not credible.  The evidence thus supports neither chronicity in service nor continuity of symptomatology, and service connection is therefore not warranted under 38 C.F.R. § 3.303(b).  To the extent the pleadings may be read liberally that he was told that he has arthritis due to the incident, the Veteran is competent to relay such information.  Jandreau, 492 F. 3d at 1376, but the above evidence indicating normal entrance and separation spine findings after ACDUTRA conflict with and are more probative than the Veteran's unsupported lay assertion in this regard.
 
On the question of whether there is a nexus between current back disability and ACDUTRA, the Board finds that the most probative opinion is that of the June 2009 VA examiner as supplemented by his May 2012 addendum opinion.  The examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record - the nature of the in-service symptoms, lack of subsequent complaints or treatment in service and return to duty, normal separation examination, and post service back injury - and his opinion of a lack of nexus is therefore entitled to significant probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). 

There is no contrary medical opinion in the evidence of record.  The question of whether current back disability including degenerative disc disease and degenerative changes are related to INACDUTRA appears to be the type of complex medical question as to which lay witnesses are not competent to opine.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011) (lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent).  See also Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer").  To the extent that the Veteran is competent to opine on the medical question of whether his current back disability is related to ACDUTRA, the Board finds that the specific, reasoned opinion of the VA physician who conducted the June 2009 VA examination and prepared the May 2012 addendum are entitled to greater probative weight than the Veteran's more general lay assertions.  

For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for low back disability.  The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).


ORDER

Service connection for low back disability is denied.




____________________________________________
J. HAGER
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs