Citation Nr: 1315822 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 08-29 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1975 to February 1982. This matter was previously before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana (RO), which, in pertinent part, denied the Veteran's claim for service connection for a back disorder. By way of a June 2010 decision, the Board confirmed the denial of the claim for service connection for a lumbar spine disorder. The Veteran filed a timely appeal with the U.S. Court of Appeals for Veterans Claims (Court). In a November 2011 Memorandum Decision, the Court vacated and remanded the Board's decision for further development in accordance with the instructions contained therein. In April 2012, per the Court's Order, the Board remanded this matter for additional development, which has been completed. FINDINGS OF FACT 1. The first medical evidence of a chronic lumbar spine disorder is not shown until many years after the Veteran's discharge from service. 2. The preponderance of the medical evidence is against a finding that the Veteran's current lumbar spine disorder is related to his complaints of low back pain or injury shown in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disorder have not been met. 38 U.S.C.A. §§ 1101, 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the Veteran of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the claimant is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). These VCAA notice requirements apply to all elements of a claim for service connection, so VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, prior to the September 2007 RO decision in the matter, VA sent letters to the Veteran in September 2006 and February 2007 that addressed all notice elements concerning his claim. The letters informed the Veteran of the evidence required to substantiate the claim and of his and VA's respective duties for obtaining evidence. VA has also informed the Veteran of how it determines the disability rating and how it assigns the effective date for the award of benefits if service connection is to be awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the VCAA duty to notify was fully satisfied as to the Veteran's claim. VA also 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 records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, as well as identified private and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA provided the Veteran with a medical examination in July 2007, in which the examiner addressed the nature and etiology of the Veteran's lumbar spine disorder. In November 2011, however, the Court found the July 2007 VA examination report inadequate for rating purposes and ordered that the Board obtain a new or clarified medical opinion. A new VA examination report was obtained in June 2012. The examiner indicated review of the claims file and summarized the Veteran's reported history of in-service injury, his service treatment records and his treatment records dated since service. The examiner opined that the lumbar spine disorder is less likely than not caused by or the result of any event or treatment that occurred during military service. The opinion was supported by a detailed rationale that addressed service treatment records, post-service treatment records, and the Veteran's statements. Therefore, the Board finds that the examination report is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran has not identified, and the record does not otherwise indicate that there exists any additional outstanding evidence that is necessary for a fair adjudication of the claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection may be established for 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 line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110 (West 2002). 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, 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. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" Walker, 708 F.3d at 1337), or in the presumptive period 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). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which [service connected] disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the "chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and [service as it] serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id.; 38 C.F.R. § 3.303(b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2012). The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. In this case, the Veteran claims entitlement to service connection for lumbar spine disorder. He asserts that his disorder is related to an injury he incurred in service. The Veteran reports that he injured his back while he was in the process of moving a helicopter when it fell to the ground and caused him to be thrown twelve feet into the air and land in a sitting position. The Veteran reports that he sought immediate treatment for his injuries and that he was placed on light duty for a short period of time. The Veteran's assertions are supported by two fellow servicemen who state that the Veteran injured his back while working on a helicopter during service. A review of the Veteran's service treatment records reveals medical notations regarding complaints of low back pain. A treatment record dated February 1976 shows complaints of low back pain, but no back injury was reported. The examination of the back was normal and there was no treatment provided. In August 1976, the Veteran said a chair was pulled out from under him and that he injured his back. He reported low back pain. A contusion of the right flank was noted. A September 1979 treatment record shows the Veteran complained of persistent mild low back pain since 1975. Mild tenderness was observed over the low back area, but there was no evidence of muscle spasm. The diagnosis was low back pain. A subsequent September 1979 note shows normal x-rays and a provisional diagnosis of acute low back strain. An October 1980 treatment record shows onset of slight pain in mid back that worsened with heavy lifting. He had no known injuries. The impression was probable strain of the mid back. A June 1981 treatment record shows continued complaints and diagnosis of low back pain. The February 1982 separation examination shows that the Veteran said his back bothered him. On clinical evaluation, the examiner reported that the Veteran's spine was evaluated as normal. The first post-service medical evidence of a lumbar spine disorder is not shown until 2002, about 20 years after separation from service. In histories provided by the Veteran in reports of treatment, he often talked of back pain and problems since 2002 of 2003. In an August 2004 private treatment record, the Veteran said he had experienced low back pain for the past year and a half. A September 2004 private consultation report shows the Veteran reported a history of low back pain since 2003, but the Veteran also reported a previous history of low back pain that was treated with medication and therapy. A physical examination revealed reduced range of motion, tenderness and reduced deep tendon reflexes. It was noted that an x-ray report showed lumbosacral spondylosis and degenerative disc disease of the lumbar spine. A September 2004 CT scan of the lumbar spine showed similar diagnostic findings. In June 2007, the Veteran was afforded a VA examination in conjunction with his claim. However, the opinion provided by the examiner is inadequate for rating purposes as it appears that the examiner did not accurately address the in-service complaints and treatment of back pain. In June 2012, the Veteran was afforded another VA examination in conjunction with his claim. The Veteran reported having been treated for an injury sustained during service while moving a helicopter. The incident caused injuries to his hands, right wrist, and tailbone; however, x-rays of his back were negative. He said he had subsequent back strains during service and pain after separation. The examiner reviewed service treatment records and noted that the Veteran complained of and was treated for several episodes of back pain but that he denied specific injury. She pointed out that a November 1980 treatment record and x-ray show treatment for a football injury to the right wrist and abrasions to the hands. She said the injuries treated at that time resembled the injuries the Veteran alleged to have incurred while moving the helicopter. The examiner pointed out that the Veteran said his back bothered him at separation; however, the physical examination was within normal limits. The examiner found no chronicity of care for back problems after service, and noted that the Veteran first sought private treatment from 2002 to 2005. She summarized post-service treatment records and noted that prior to filing his claim for service connection, he reported the onset of back pain as 2003. Once he filed his claim, he related his back pain to service. She summarized statements from the Veteran, his buddy statements, and the procedural history of the Veteran's claim. The examiner opined that the Veteran's claimed back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. While the Veteran said he injured his back while moving a helicopter and that the injury was treated during service, the examiner could not find service treatment records to corroborate his stated history. She identified his various diagnoses during service but found that his reported history of injury was not supported in the treatment records. Only the November 1980 treatment record shows treatment of injuries like those the Veteran attributed to the helicopter incident; however, those injuries were reported as due to a football related incident. The examiner found no complaints of back pain or a back condition in flight physicals completed after the alleged injury was supposed to have occurred. The examiner said that at no time during service "did the Veteran have any treatment for a back condition that was not fully discussed as to etiology." The examiner opined that the type of conditions treated during service were not biomechanically consistent with later development of either lumbosacral degenerative disc disease or lumbosacral spondylosis or degenerative joint disease. She also noted the lack of chronicity of symptomatology as he was not treated for back problems until 2004 at which time he reported onset of pain as 2003, not service. At that time, he did not report pain continuing since service. Therefore, the examiner concluded that the evidence argues against any nexus between the current back conditions and his remote conditions during service. The Veteran's reports of in-service treatment for back pain are supported by the findings in his service treatment records. His report of an injury during service is supported by the statements from his fellow servicemen. The post-service medical evidence shows that the Veteran has a current diagnosis for lumbosacral degenerative disc disease or lumbosacral spondylosis or degenerative joint disease in his lumbar spine. The remaining question on appeal is whether the evidence of record supports a link between the Veteran's current lumbar spine disorder and his complaints of low back pain and injury during service 20 years earlier. Here, the weight of the medical evidence is against such a finding. First, although the record shows complaints of low back pain during service, and the Veteran reported an in-service low back injury, there is no objective medical evidence showing that the Veteran had a chronic lumbar spine disorder during service. The Board finds it pertinent that there were no abnormal x-ray findings during service and that the Veteran's spine was evaluated as normal in the February 1982 physical examination. The first medical of evidence of a chronic condition is not shown until, at earliest, 2002, which is almost two decades after the Veteran's discharge from service. The evidentiary gap between the Veteran's active service and the earliest medical evidence of chronic lumbar spine disorder weighs heavily against the Veteran's claim. A lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). Additionally, the record lacks any medical evidence supporting the finding of a relationship between the Veteran's low back disorder and his period of active service. The June 2012 examiner found that the Veteran's current lumbar spine disorder was not related to his alleged in-service injury. Specifically, she found that the conditions treated during service were not biomechanically consistent with later development of either lumbosacral degenerative disc disease or lumbosacral spondylosis or degenerative joint disease. There is no medical opinion contained in the record that links the Veteran's current lumbar spine disorder to his service in order to support an award for service connection. See 38 C.F.R. § 3.303. The Board has considered the Veteran's lay assertion that his current disability is related to his service. As a lay person, the Veteran is competent to attest to facts surrounding his claim and symptoms he can observe. He is not competent, however, to offer opinions that require medical knowledge. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Veteran is not shown to have the requisite medical training or expertise to competently render a current medical diagnosis for his symptoms or to provide a medical opinion establishing an etiological link between any current diagnosis and service. See Routen v. Brown, 10 Vet. App. 183, 186 (1997) (a layman is generally not capable of opining on matters requiring medical knowledge). Notably, a chronic degenerative disorder (such as the Veteran's current condition) is a medical diagnosis that cannot be identified by a lay person. Rather it requires diagnostic testing and medical expertise to determine its very nature. Moreover, while the Veteran may believe that the in-service back injury has lead to his current disorder, the Board finds most persuasive the June 2012 examiner's opined that the type of conditions treated during service are not biomechanically consistent with later development of either lumbosacral degenerative disc disease or lumbosacral spondylosis or degenerative joint disease. In sum, although a review of the service treatment records shows the Veteran complained of low back pain during service, the weight of the medical evidence does not show that the current lumbar spine disorder is related to his service. The Board finds that the preponderance of the evidence is against the claim. As such, the benefit of the doubt rule is not applicable here. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim must be denied. ORDER Entitlement to service connection for lumbar spine disorder is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs