Citation Nr: 1317689 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 04-24 319 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUE Entitlement to service connection for a back disability. ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to September 1970. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2002 rating decision. The Veteran requested a Board hearing in his June 2004 substantive appeal, but subsequently withdrew the request in April 2006 correspondence. This matter was previously before the Board in April 2007 at which time the Board concluded that new and material evidence had been presented, and reopened the issue captioned on the title page of this decision, as well as several others for which service connection was thereafter granted. The Veteran's claim was then remanded for additional development. The Veteran was previously represented by the Veterans of Foreign Wars of the United States. However, because there was some ambiguity in the Veteran's claims file as to whether he wished to continue being represented by that organization, the Board sent him a letter in July 2012 to clarify his representation. In response, the Veteran responded that he wished to proceed without a representative and represent himself. In August 2012, the Board remanded the Veteran's claim for additional development. The directed development has been completed, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The weight of the evidence is against a finding that the Veteran's back disability either began during or was otherwise caused by his military service. CONCLUSION OF LAW Criteria for service connection for a back disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may also be granted for a chronic disease shown 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. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 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). The Veteran has been diagnosed with degenerative joint disease during the course of his appeal (although he has also been given other back related diagnoses such as degenerative disc disease and lumbago), which is a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.303(b) could potentially apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the Veteran's degenerative joint disease in his back did not become chronic in service, was not continuous from service, and did not manifest to 10 percent within a year. As will be discussed, there is no back treatment shown in service, and no back disability diagnosed for a number of years following service (and not until after the Veteran suffered a serious back injury at work in 1994). The Veteran has at times alluded to back pain in service, and he is competent as a lay person to report what comes to him through his senses, and can therefore report symptoms such as pain. See Layno v. Brown, 6 Vet. App. 465 (1994). However, he lacks the medical training and expertise to provide a complex medical opinion as to diagnosing arthritis in his spine which would require radiologic evidence. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). To this point, x-rays taken in August 1971, within a year of the Veteran's separation, showed no arthritic or bony changes and normal disc spacing. As such, a chronic back disability was not shown either in service or within a year of service, and the Veteran's recollections of back pain in service do not constitute evidence of a chronic disability, as x-rays shortly thereafter did not show a chronic disability. As such, service connection is not warranted under 38 C.F.R. § 3.303(b). Service connection may also be awarded if it is shown that a disability first diagnosed after service either began during or was otherwise caused by a veteran's military service. The evidence of record here clearly shows that the Veteran has a lower back disability in that radiologic evidence has shown degenerative disc disease and degenerative joint disease, albeit mild. This case was also certified to the Board as one for service connection for a back disability. However, in his substantive appeal in June 2004, the Veteran explained that he was not claiming spinal problems, and he denied experiencing any pain from degenerative disc disease. He did indicate that to the right of his spine at the lower back there was a soft tissue bulge. He recalled that he first became aware of pain in that area during basic training when he was standing in place for extended periods (such as on the parade field), and indicated that it bothered him in Vietnam as well with the old metal cots. He asserted that this condition limited his ability to stand, and he recalled one doctor diagnosing him with a type of hernia. Similarly, in August 2007, the Veteran asserted that he had some protuberances in his lower back, which he felt were under compression between his bones. He again recalled having been told he had a hernia. However, the Board has found no such "hernia" condition diagnosed or treated in any medical treatment record; and in fact it has been explained to the Veteran that he does not in fact have a hernia. For example, in a January 2008 treatment record the Veteran reported having hernias in his lower back area; but the medical professional clarified that what he was referring to were fat nodules that were present in everyone and were not hernias. Given the finding that these "fat nodules" were found by a medical professional to be generic and not disabling, the Board concludes that no disability is presented with regard to that allegation, and therefore service connection is not warranted. The Board will now turn to the question of whether the Veteran's lower back disability either began during or was otherwise caused by his military service. Service treatment records fail to show any lower back treatment during service. On the Veteran's separation physical his spine/other musculoskeletal was noted to be abnormal, but there was no explanation provided. The Veteran separated from service in September 1970, and in May 1971 he filed a claim seeking service connection for "soreness Right Side of Back and Hip Oct 1968", among other claimed disabilities. He did not allege having received any back treatment at that time. The Veteran was provided with a VA orthopedic examination in August 1971 to investigate his claim. The examiner noted that he did not find any record of a back injury in service. The Veteran reported having experienced back pains in the right lumbar area during basic training, but he specifically denied experiencing any back pain at the time of the examination. A physical examination showed his iliar crests were level and his spine was straight; forward, backward and lateral motion of the lower back was all normal; there was no evidence of muscle spasm in the lower back; and straight leg raises was permitted to a maximum and knee and ankle jerks were normal. No lower back disability was diagnosed, and x-rays showed no arthritic or bony changes, a normal outline of the sacroiliac joints, normal disc spacing, and no spurring or lipping of the bodies. In February 1976, the Veteran presented for treatment at VA complaining about pain on the right side of his neck, but he did not seek any back treatment at that time. Moreover, it was noted in a 1995 report that the Veteran had ridden a bicycle approximately 4,000 miles across the country in 1976. Following service, no back treatment was seen for a number of years. In September 1995, the Veteran was seen by Dr. Wakim. An MRI showed a bulging disc with a protrusion. It was noted that in November 1994 the Veteran had sustained an injury to his lower back in the buttocks area. The injury occurred lifting a 400 pound wooden cart to a truck. He experienced lower back pain on the right side. The Veteran stated that prior to 1994 he had no problems with his back. In April 2002, the Veteran filed a claim seeking service connection for a right shoulder condition/neck/back condition. The evidence of record clearly establishes the fact that the Veteran currently has a lower back disability. However, no medical evidence or opinion actually relates the Veteran's current back disability to his military service. Instead the onset of back problems is consistently traced to the Veteran's on-the-job injury in 1994. For example, in a June 2002 VA treatment record, it was noted that the Veteran had chronic lower back pain with a history of disc disease from a work injury in 1994. In June 2003 it was noted in a VA treatment record that the Veteran had lumbago from an old injury at work. Finally, in August 2003 it was noted that the Veteran had experienced back pains following a work related injury in 1994, which he reported being told was a bulging disk. Even the Veteran has acknowledged that his back disability is secondary to the post-service work injury, testifying at an informal RO hearing in January 2004 that his lower back problems were caused by a post-service on-the-job injury for which he had sought Worker's Compensation. The Veteran was provided with a VA examination in April 2009. The examiner noted that the Veteran had had NO steady employment since his lower back injury in November 1994. X-rays showed mild lumbar degenerative joint disease. The examiner essentially opined that the Veteran's lumbar condition was not service related. As discussed, the evidence of record does confirm that the Veteran has a current lower back disability, but the evidence does not show that such a disability either began during or was otherwise caused by his military service. Rather, the overwhelming weight of the evidence links the Veteran's back disability to his work injury in 1994. Given this conclusion, the criteria for service connection have not been met, and the Veteran's claim is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in August 2005, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records and VA treatment records have been obtained, and the Veteran denied receiving any Social Security Administration (SSA) disability. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file), and the Veteran has not questioned the adequacy of the examinations. Additionally, the Veteran testified at an informal RO hearing and was offered the opportunity to testify at a hearing before the Board, but he declined. Private treatment records have also been obtained to the extent they have been identified and are available. In July 2010, the Board remanded the Veteran's claim noting that an April 2007 Board remand had specifically directed the AOJ to contact the appropriate state agency and obtain a copy of any determinations made with regard to the Veteran's claim for Workers' Compensation, to include all medical records upon which any determinations were made. It was acknowledged that the Veteran had submitted some records pertaining to his Worker's Compensation claim; but the Board concluded that it was unclear whether the entirety of the Veteran's Worker's Compensation file had been obtained. The Board instructed the AOJ to contact the appropriate state agency and obtain all records relating to any Worker's Compensation claim filed by the Veteran. In response, two requests were faxed to the California Department of Industrial Relations (CDIR), requesting any records related to the Veteran's Worker's Compensation claim, but no response was received in response to either request. Unfortunately, the Veteran was not informed as required by 38 C.F.R. § 3.159(e) that VA had been unsuccessful in obtaining the Worker's Compensation records. It was also noted that the Veteran had written that he had requested his Worker's Compensation records as well. As such, the Board remanded the claim again in 2012 to ensure that all possible avenues had been pursued to obtain the Worker's Compensation records. Following the Board remand, the Veteran was sent a letter asking for authorization to obtain the records, but no response was ever received. The Board wishes to emphasize that, "[t]he duty to assist in the development and adjudication of a claim is not a one way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran was asked to authorize VA to seek the Worker's Compensation records, but he failed to respond, preventing VA from seeking the records. Moreover, he failed to provide any additional records himself. As such, at the very least there has been substantial compliance with the Board's remand and there is no prejudice for the Board to adjudicate this claim. See Stegall v. West, 11 Vet. App. 268 (1998). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of the denial of the Veteran's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to him under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for a back disability is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs