Citation Nr: 1317754 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 09-46 786A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a herniated disc L3-L4 and spinal stenosis disability claimed as a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from August 1983 to February 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut which denied entitlement to service connection for a herniated disc L3-L4 and spinal stenosis. Jurisdiction of this matter was subsequently transferred to the RO in New York, New York. In February 2013, the Veteran testified at a Videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been reviewed and is of record. FINDINGS OF FACT Evidence of a herniated disc L3-L4 and spinal stenosis disability claimed as a low back disability was not shown in service, nor until many years after service discharge; and the weight of the probative evidence is against a finding that a current low back disability is related to active military service. CONCLUSION OF LAW A herniated disc L3-L4 and spinal stenosis disability, claimed as a low back disability, was not incurred or aggravated during service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). In this appeal, the RO provided notice to the Veteran in a September 2008 letter prior to the date of the issuance of the appealed March 2009 rating decision. The September 2008 letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorder described by the Veteran. Additionally, he was afforded a VA examination in March 2009, which appears to be thorough and adequate on which to base a decision. As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his claims. 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) (2011) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claims that were lacking to substantiate the claims for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claims. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Service Connection Laws and Regulations 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. § 1110; 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). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007) In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Board has reviewed all the evidence in the Veteran's claims file. 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 Veteran 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). Factual Background and Analysis The Veteran contends that he has a low back disability that is related to his service. Specifically, at his February 2013 hearing, the Veteran testified that he strained his back while lifting weights while in the service. The pain and discomfort persisted since this initial injury. The Veteran also testified that his post-service motor vehicle accident worsened his back disability which had originated in service. Service treatment records demonstrate multiple complaints of back pain. In September 1983, he presented with complaints of back pain. The diagnosis was a muscle strain. In July 1984 the Veteran presented for a recheck of his low back pain. It was noted that he had been playing basketball since he injured his back. There was no radiating pain and the spine and other parts of the back were nontender. The assessment was a muscle strain. In October 1984, the Veteran presented with a 5 month history of lower back pain after injuring his back in a basketball game. The impression was a lower back strain. In August 1986, the Veteran presented with a history of 2 month long lower back pain. The assessment was probable musculoskeletal lower back pain. A November 1986 Report of Medical Examination was negative for complaints or diagnoses regarding the Veteran's back. A June 1998 private treatment report noted that the Veteran reported that he experienced back problems for the past 4 years. In September 1999 the Veteran underwent an orthopedic examination for the New York State Division of Disability Determination. The Veteran reported that he had been having low back pain since 1995 when he was involved in a motor vehicle accident where the truck he was driving flipped over and injured his neck, forehead and back. The diagnosis was disc space narrowing at L4-5 and L5-S1 and straightening of the lordotic curve. A September 1999 x-ray report of the lumbosacral spine noted that the disc spaces at L4-5 and L5-S1 were narrowed. There was also straightening of the lordotic curve. In May 2007, the Veteran was admitted to the Emergency Department with complaints of low back pain since 1995 that had worsened the past few days. The Veteran underwent a VA examination in March 2009. The examiner noted that the Veteran reported the onset of back pain while on active duty and was evaluated on sick call. He reported believing that he had disc disease then because he saw G6PD deficiency (glucose, 6 phosphate, dehydrogenate, an enzymopathy related to hemolytic anemia) on his service treatment records and thought that this indicates disc disease. He reported intermittent low back pain after active military duty when he would bend and lift. He reported driving a cement mixing truck post military which flipped over while he was driving the vehicle in 1995. Reports from his hospitalization following the accident demonstrated a diagnosis of herniated lumbar discs. He underwent therapy and epidural injections which were not effective. He reported that he currently had constant back pain, frequent back spasms and occasional tingling in his bilateral toes. The current diagnosis was lumbar disc herniation L3-4 and spinal stenosis L4. The examiner opined that the Veteran's lumbar disc herniation L3-4 and spinal stenosis L4 was less likely as not caused by or a result of the Veteran's service. The examiner noted that the Veteran's service treatment records had a number of progress notes regarding his complaints of low back pain and the assessment of musculoskeletal low back pain and back strain. However, the Veteran also suffered a back injury after a 1995 motor vehicle accident. The examiner concluded that it was likely that the Veteran's lumbar disc herniation and spinal stenosis were related to the trauma of the motor vehicle accident in 1995. Having carefully reviewed the record, the Board concludes that service connection is not warranted for the claimed low back disability. The Board finds that there is a current diagnosis of a low back disability as the Veteran has lumbar disc herniation L3-4 and spinal stenosis L4. Accordingly, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Board acknowledges that the Veteran's available service treatment records demonstrate multiple complaints of low back pain. The service treatment records however, are negative for any or diagnoses of any chronic low back disorders as the back complaints were medically addressed in service, and appear to have been of an acute and transitory nature. Significantly, a November 1986 Report of Medical Examination was negative for complaints or diagnoses regarding the Veteran's back. The Veteran was also not diagnosed with a low back disability until many years after service as the first evidence of a low back disability is the September 1999 treatment note which reflected a diagnosis of disc space narrowing at L4-5 and L5-S1 and straightening of the lordotic curve. While the Veteran has contended that he has experienced low back pain since his active duty, in the September 1999 treatment, the Veteran reported that he had been having low back pain since 1995 when he was involved in a motor vehicle accident, which would place its onset a number of years after discharge from service. The Board finds that statements made directly to a health care provider during the course of treatment are inherently more credible than statements made in support of a claim. For this reasons, the Veteran's assertions as to continuous back pain since service are not found to be credible. Further, there is no competent evidence or opinion even suggesting that there exists a medical nexus between a current low back disability and the Veteran's military service. In fact, the only medical opinion addressing the etiology of the back disability weighs against the claim. As indicated above, the March 2009 VA examiner opined that the Veteran's back disability was less likely than not incurred in or caused by the Veteran's claimed in-service injury, event or illness. None of the competent medical evidence currently of record refutes this conclusion, and the Veteran has not presented or identified any such existing medical evidence or opinion. Given that the most probative opinion is against a finding of a relationship between a low back disability and service, the Board finds that service connection is not warranted. In reaching this conclusion, the Board has considered the lay evidence offered by the Veteran to VA. This includes his statements and testimony in which he asserted his belief that his claimed low back disability is related to his service. To the extent that the Veteran himself contends that a medical relationship exists between her current claimed disabilities and service, the Board again acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As discussed, however, the Board has found that his reports of continuous symptoms since service are not credible. The Board recognizes that a lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that the question regarding the potential relationship between the Veteran's claimed low back disability to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In this instance, therefore, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between his current low back disability and his service. As such, the Board ascribes far more weight to the conclusions of the VA examiner who concluded that the Veteran's current low back disability was not related to service. See Jandreau, 492 F.3d at 1377. In sum, the Board finds that service connection for a back disability must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 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 herniated disc L3-L4 and spinal stenosis disability claimed as a low back disability is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs