Citation Nr: 1317544 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 04-30 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from August 1958 to August 1960 and from September 1961 to August 1962. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, in which the RO denied the Veteran's claim for service connection for a back disorder. The Board denied the Veteran's appeal in a July 2011 decision. The Veteran appealed the Board's 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2012 joint motion for remand (Joint Motion), the Court vacated the Board's decision and remanded the claim for re-adjudication. The Board subsequently remanded the case in February 2013 for further notification, evidentiary development, and adjudication. The agency of original jurisdiction (AOJ) sent the Veteran the required notice via a February 2013 letter, to which the Veteran did not respond, and scheduled the Veteran for a VA examination, which was conducted in March 2013. The Veteran was then provided a supplemental statement of the case (SSOC) in April 2013, in which the AOJ again denied the Veteran's service connection claim. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in November 2008. A transcript of the hearing has been associated with the Veteran's claims file. Please note that 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 back disorder did not have its clinical onset in service and is not otherwise related to active duty; arthritis of the spine was not exhibited within the first post service year. CONCLUSION OF LAW A back disorder was not incurred or aggravated in service, and arthritis of the spine may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, VA satisfied its duties to the Veteran in VCAA letters issued in July 2003, August 2004, June 2009, and February 2013. The July 2003 letter predated the December 2003 rating decision. See id. The VCAA letters notified the Veteran of what information and evidence is needed to substantiate his claims of service connection, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the types of evidence necessary to establish a disability rating and effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA, to include compliance with the February 2013 Joint Motion. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The evidence of record contains the Veteran's service treatment records and lay statements of the Veteran, as well as post-service treatment from both private and VA treatment providers. The evidence of record contains examination requested by VA performed in September 2010 and March 2013. The Board finds that the March 2013 VA examination report is thorough and contains sufficient information to decide the issue on appeal. McLendon v. Nicholson, 20 Vet. App. 79 (2006). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue on appeal. Criteria & Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in 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, 1131; 38 C.F.R. § 3.303. 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). If arthritis becomes manifest to a degree of 10 percent or more during the one-year period following a Veteran's separation from active service, the condition may be presumed to have been incurred in service, notwithstanding that there is no in-service record of the disorder. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Relevant medical evidence consists of the Veteran's service treatment records as well as records of his post-service treatment with both private and VA treatment providers. In addition, the Veteran underwent VA examinations in September 2010 and March 2013. Review of the Veteran's service treatment records reflects that he underwent medical examination in June 1962 in anticipation of his separation from active duty. At that time, he was found to have no abnormalities of the spine or musculoskeletal system and made no complaints concerning his lumbar spine. However, records indicate that the day following this examination, the Veteran reported that he picked up the end of a desk the previous day and that his back had been hurting since that time. On examination, he had sore muscles around the left scapula and upper lumbar area. The diagnosis was muscle strain. No follow-up complaints or treatment for back strain are present in the record. In August 1962, subsequent to the June 1962 diagnosis of muscle strain of the back, the Veteran signed a "Medical Statement upon Separation" in which he stated that there had been no change in his medical condition since the June 1962 medical examination. Post-service medical records are silent as to any mention of a back problem until March 1987, at which time the Veteran was seen for complaints of pain in his back for a week prior. He was diagnosed with "back muscle pain" at that time; radiological evaluation was normal. The Veteran was again seen in January 1989 for complaints of sharp back pain that began the same morning; he was diagnosed at that time with musculoskeletal strain. In September 1990, radiological evaluation revealed mild degenerative changes of the spine. The Veteran was not seen again for complaints of low back pain until May 2007, at which time he complained of "frequent low back pain." No diagnosis was assigned at the time. Post-service VA treatment records further reflect that in July 2007, the Veteran was seen by a VA treatment provider with complaints that he had been having intense fleeting pains in his lower back that he thought was related to his kidneys. He reported that the pain began several days prior and came and went with movement. He denied having any pain upon arrival for treatment. The assessment was low back pain. The next day the Veteran was seen by a primary care physician and reported that his back pain had resolved with the prescribed medication. On physical examination of the musculoskeletal system there was no active joint disease. However, the final assessment included degenerative joint disease. In September 2007 the Veteran was again seen by VA treatment providers, at which time he complained of low back pain for the past two to three days. He denied any falls, injury, or trauma. The Veteran also reported no ongoing history of back pain, although he did report some back pain in the military. Examination revealed lumbar tenderness. The assessment was back pain, no past history, atraumatic. VA compensation examination for the spine was conducted in September 2010. In reporting his medical history, the Veteran stated that the onset of his back disorder was in 1961 to 1962. He reported that he was treated for low back pain in service, but he could not recall any injuries to the back. He stated that he had daily back pain. Following examination of the spine, the examiner diagnosed the Veteran with low back strain. Radiological evaluation was normal, and the examiner opined that it was less likely as not that the Veteran's chronic back disorder was caused by or related to his back complaints during his active service. The rationale for this opinion was that there was no documentation in the service record to show that the Veteran incurred a back injury or back condition during his time in service. In so opining, however, the examiner failed to consider the June 1962 diagnosis of muscle strain, or the Veteran's 1987 and 1989 private treatment visits for back pain. Pursuant to the Board's February 2013 remand, the Veteran was provided a VA examination in March 2013. At that time, he reported that he injured his back in the military but again could not provide details. The examiner noted that the Veteran was a poor historian due to his dementia. Upon physical and radiological examination, the examiner diagnosed the Veteran with back strain and lumbar osteoarthritis. However, the examiner found neither disorder to be related to the Veteran's service, including the June 1962 diagnosis of muscle strain in service. Rather, the examiner attributed the Veteran's lumbar osteoarthritis to his advancing age. In that connection, the examiner pointed to the August 1962 statement in which the Veteran affirmed that his physical condition had not changed since the earlier June 1962 medical examination, in which his spine and musculoskeletal system were found to be normal. The examiner further acknowledged the 1987 and 1989 complaints of back pain but found them to be two episodes of acute back pain without a chronic component. In so noting, the examiner pointed out that, contrary to the Veteran's later assertions of having experienced back pain continually since service, the 1987 treatment note reflects a complaint of back pain for only one week's duration, and the 1989 treatment visit reflects that the Veteran reported having developed back pain only on the morning of the visit. In addition, the examiner noted that the September 1990 radiological study that found mild degenerative spinal changes was actually conducted as a chest X-ray and only incidentally made the identified findings. Thus, the examiner concluded, given the lack of identified back problems at the Veteran's separation from service and the more than thirty years between his separation from service and the first complaints of chronic back problems, any link between his current lumbar osteoarthritis or back strain and service was doubtful. The Veteran testified before the undersigned Veterans Law Judge at a hearing in November 2008. At that hearing, the Veteran stated that his back hurt in service in the same manner in which it was currently causing him problems, although he did not identify a specific injury he incurred while on active duty. The Board further notes that the Veteran has stated in multiple submissions to VA that he first experienced back pain in service that has continued to the present. Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a back disorder. VA examinations confirm that the Veteran currently suffers from back strain and lumbar osteoarthritis. The Board concludes, however, that the greater weight of the evidence is against the claim. Here, even conceding the Veteran's June 1962 in-service diagnosis of muscle strain, the March 2013 VA examiner found no link between any current disability and military service. In particular, the March 2013 VA examiner specifically considered the Veteran's contentions as to the continuity of symptomatology and still found there to be no evidence that his in-service muscle strain caused anything more than temporary back pain that resolved without residuals and did not lead to any permanent back problems. Additionally, there is no medical evidence suggesting that any back disorder became manifest to a compensable degree within a year of the Veteran's separation from military service. 38 C.F.R. §§ 3.307, 3.309. Noting that the Veteran's separation examination documented a normal spine and musculoskeletal system, the March 2013 VA examiner gave as his expert medical opinion that it was not at least as likely as not that any current back disorder was related to the Veteran's military service. In so concluding, the examiner considered the Veteran's contention that he has continually experienced back pain from his time in service to the present. However, the examiner pointed to the August 1962 statement, as well as the lack of any complaints of chronicity at the 1987 or 1989 treatment visits, in finding that any such continuity of symptomatology was doubtful. Furthermore, the Board finds persuasive the absence of medical evidence to support a finding of a nexus between the Veteran's service and his current back strain and lumbar osteoarthritis. In that connection, the Board notes that the medical opinion submitted by the March 2013 VA examiner acknowledged the Veteran's in-service muscle strain and his complaints of having first experienced back pain in service but nonetheless concluded that it was less likely than not that his current lumbar osteoarthritis or back strain was in fact due to service. In so finding, the March 2013 VA examiner pointed to the thirty-year gap between the Veteran's separation from service and his first complaints of chronic back pain and found that his current lumbar osteoarthritis is related not to service but to his advancing age. Similarly, the examiner found the Veteran's current back strain not to be service-related, pointing to the August 1962 statement by the Veteran, and the 1987 and 1989 complaints of only acute back pain, in his reasoning. There is simply no medical evidence in the record supporting a finding of an etiological relationship between the Veteran's time in service, including his June 1962 muscle strain, and his current back strain or lumbar osteoarthritis. The Veteran has stated to VA that he first experienced back pain while in service and has experienced that same pain from his time in service to the present. In this regard, the Board notes, first, that it does not question that the Veteran presently suffers from back strain and lumbar osteoarthritis. However, in order for the Veteran's claim to be granted, the record must contain persuasive evidence linking the present disorders to service. The medical evidence does not lead to a conclusion any current back disability is related to service. The Board has considered the Veteran's contention that his claimed back disorder began in service or otherwise resulted from his time on active duty. The Veteran, however, has not demonstrated that he has any medical expertise to make such an opinion. The Board notes that although the Veteran is competent to report symptoms such as back pain, he does not have medical expertise and therefore cannot provide a competent opinion regarding diagnosis or causation of this disability. As a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide a probative opinion on a medical matter such as whether there exists a medical nexus between any current back disorder and service. As for his statements that he has had back problems since service, the Veteran's spine and musculoskeletal system were normal at separation. The June 1962 in-service complaints of back pain and diagnosis of muscle strain are noted, but there was no follow-up treatment and it appears that the muscle strain was acute. In August 1962, the Veteran indicated that there had been no change in his medical condition since the normal June 1962 examination. When seen for low back complaints in the late 1980s, the Veteran indicated that symptoms were of recent onset. The Veteran did not report chronic back pain that related back to service. The Board does not find any claim that low back pain persisted since service to the present to be credible. The clinical evidence and the Veteran's own statements when seeking medical treatment contradict any claim that low back symptomatology continued following service. In reaching its conclusion, 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 for service connection for a back disorder, that doctrine is not helpful to the Veteran. 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 Entitlement to service connection for a back disorder is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs