Citation Nr: 1317035 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 97-12 426 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for residuals of a back injury, to include a crushed disc. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from September 1961 to January 1966. He had subsequent periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) as a member of the U.S. Army Reserve between January 1975 and January 1979, and in the Army National Guard (ANG) of Pennsylvania from August 1983 to December 1996. His ANG unit verified that he had a period of ACDUTRA from July 5 to July 20, 1991, but that he was not on active duty training in November or December 1991. By an October 1996 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO), in pertinent part, denied service connection for residuals of a back injury, to include a crushed disc. The Veteran appealed to the Board of Veterans' Appeals (Board). In March 1999, the Board remanded the case to the RO for additional development. In August 2000, while the case was in remand status, the prior denial of service connection for residuals of a back injury was confirmed and continued, and a supplemental statement of the case (SSOC) as to that issue was prepared and mailed to the Veteran. 38 C.F.R. § 19.31. However, due to an administrative oversight, the appeal was not returned to the Board until October 2010. The Veteran testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge (VLJ) in November 2011. A transcript of the proceeding is of record. In February 2012, the Board remanded the claim for service connection for residuals of a back injury for further development and consideration. In a December 2009 submission, the Veteran's representative raised the issue of the Veteran's entitlement to service connection for tinnitus. Neither the claims file nor the electronic Virtual VA file reflect that this issue has been adjudicated by the agency of original jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The most probative evidence indicates the Veteran's current back disability is not related to his military service, to include ACDUTRA or INACDUTRA. CONCLUSION OF LAW The requirements for establishing service connection for a low back disability, claimed as a crushed disc, have not been met. 38 U.S.C.A. §§ 101, 106, 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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)) redefined VA's duty to assist a claimant 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, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a 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 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). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in letters dated in February 2010, March 2010, and February 2012, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The February 2012 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last readjudicated in April 2013. Regarding the duty to assist, VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained a medical opinion, and afforded the appellant the opportunity to give testimony before the Board. Additionally, the Board also notes that actions requested in the prior remands have been undertaken. Indeed, pertinent service personnel records, treatment records, Social Security Administration (SSA) disability insurance records, and an examination were obtained. The RO attempted to verify all ACDUTRA and INACDUTRA dates, but such information could not be obtained and a formal finding of unavailability was made. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran has been afforded a hearing before the undersigned VLJ in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ and the Veteran's representative asked specific questions directed at identifying in-service incidents and complaints related to the claimed disability, as well as the existence of relevant additional evidence. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2). The hearing focused on the elements necessary to substantiate the claims, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant and 38 C.F.R. § 3.103(c)(2) is necessary and there is no prejudice to the Veteran in deciding the claim at this time. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument to support his claim. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21) and (24) (West 2002); 38 C.F.R. § 3.6(a) and (d) (2012). ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C.A. § 101(23)(A). Reserves includes the National Guard. 38 U.S.C.A. § 101(26), (27). Certain evidentiary presumptions - such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases, such as arthritis, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service--are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C.A. §§ 101, 1112; 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309. However, the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or inactive duty training. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (Noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (Citing Paulson, supra for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim."). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In February 1996, the Veteran requested service connection for a crushed disc claiming the injury occurred when he was thrown inside a tank while serving as a gun loader during ANG training in 1991. During his hearing, the Veteran testified that he did not suffer a specific back injury during service; rather, he alleged that the combined effects of the jerking and stopping of the tanks he was in during his reserve service caused his disability. He testified that he could not recall when his back first began hurting him, but that he first saw a civilian doctor for it in 1991. He does not allege that his back disability is related to his period of active duty from 1960 to 1966. The Veteran's service treatment records are negative for any findings, complaints or treatment of a back condition. As pertinent here, on November 9, 1991, the Veteran was afforded an over 40 physical examination. He did not mention any back injury, he denied recurrent back pain, and a spine examination was normal. The Veteran presented at a private hospital emergency room on November 15, 1991 with left hip and calf pain which started approximately two weeks previously. He denied trauma to the back or legs. The initial diagnosis was sciatica versus lumbar disc. He underwent left L5-S1 microdiscectomy in December 1991. It was noted the Veteran had a three week history of left leg pain that began in the hip and radiated along the posterior aspect of the calf. A decision of the Social Security Administration (SSA) granted the Veteran disability insurance benefits, effective September 1997, primarily due to discogenic and degenerative disorders of the back. Upon review of the record, the Board notes that verification of all periods of ACDUTRA and INACDUTRA could not be accomplished. However, verification of the period during which the Veteran first sought treatment for his back has been accomplished, and the Veteran does not currently allege a specific incident or injury during any other period of training. Rather, his allegations pertain to cumulative effects of his duties as a tank crewman, and such contention has been addressed by the VA examiner. The Veteran's ANG unit verified that he was not on active duty training in November or December 1991, and the Veteran does not contend his back disability is related to his active duty service. Thus, the question in this case is whether the Veteran's current back disability is related to his reserve service. To resolve this question, the Veteran was provided with a VA examination in April 2013. After a review of the Veteran's claims file, the examiner noted that the Veteran's current radiographic examination supports a diagnosis of mild multilevel lumbar degenerative joint disease and moderate degenerative intervertebral disease of the lumbar spine at L5-S1 level. His physical examination demonstrated a mild limitation of his lumbar spine range of motion and his subjective complaints of some radicular pain in his left leg and stiffness supported that diagnosis. The examiner concluded that it was less likely as not that the Veteran's back condition was incurred in service or caused by the claimed in-service injury. The examiner noted the Veteran's contention that his back pain began due to the jarring motion of the tanks that resulted in "jerking and stopping." However, the examiner noted that the Veteran's training drills were conducted infrequently, happening one weekend a month and two weeks yearly. Meanwhile, the Veteran had worked as a self-employed lumberjack from 1983 to 1989 for six to seven days a week and as a laborer for a lumber business from 1989 to 1991 for five or more days a week. As a lumberjack, the Veteran used chain saws and six-cylinder diesel motors driving high-powered saw blades. He trained and supervised employees in the cutting of trees. At the job of laborer (1989-1991), he ran a high lift and chain saw. He also carried lumber. Given the physical nature of the Veteran's vocation outside of his occasional drills in the ANG, the examiner found it more likely that his herniated lumbar disc was a result of heavy lifting type of work he was doing on his civilian job. The examiner reasoned that the Veteran's herniated disc was caused by axial loading and not from "jerking and stopping" while in a tank. The examiner further noted that the disability has progressed as expected and was not permanently worsened beyond its natural progression as a result of periods of ACDUTRA or INACDUTRA after November 1991. The Board finds the VA examiner's opinion is entitled to great probative weight. This opinion was provided following examination of the Veteran and review of the claims file. The examiner addressed the Veteran's assertion as to the origin of the disability, and provided an adequate rationale for the conclusion reached. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion). There is no medical opinion in the record to the contrary. The Board finds that service connection for his back disability is not warranted. The evidence does not show and the Veteran does not contend that his back disability is related to his period of active duty in the 1960's, nor is there any evidence revealing arthritis of the lumbar spine within one year following his discharge from that period of service. Moreover, the Veteran was not on a period of ACDUTRA when he first sought treatment for his back in November 1991, and there is no contention or findings of a specific injury occurring to his back during his July 1991 ACDUTRA. Indeed, he denied back problems on an annual physical in early November 1991. The only medical opinion addressing whether his current back disability is related to his reserve service, to include his duties in tanks, was the opinion of the VA examiner in April 2013, who determined the current back disability is not related to his reserve duty activities. None of the post-service medical records contains a medical opinion relating the Veteran's current back disorder to any period of ACDUTRA or INACDUTRA. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). While the Veteran believes his current back condition is related to reserve service, there is no indication that he has specialized training in diagnosing orthopedic or neurologic disorders or determining their etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of disc disease, arthritis, herniated discs and other lumbar spine disorders requires medical testing to identify, and such can have many different causes, thereby requiring medical expertise to determine the etiology. Accordingly, the Veteran's opinion as to the etiology of his back disability is not a competent medical opinion, and the Board affords significantly greater weight to the VA examiner's opinion. The competent and credible evidence fails to show the Veteran's back condition arose during active service or a period of ACDUTRA, nor is there evidence of an injury during INACDUTRA. Moreover, there is no evidence of arthritis manifest during the one-year presumptive period after his period of active duty. Finally, the most probative evidence indicates that the Veteran's current back disability is not related to service, to include his duties in a tank during his reserve service. Accordingly, the preponderance of the evidence is against this claim for service connection for a back condition and the claim is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a low back disability, claimed as a crushed disc, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs