Citation Nr: 1317864	
Decision Date: 05/31/13    Archive Date: 06/06/13

DOCKET NO.  12-02 477	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected residuals of a shell fragment wound of the right thigh, Muscle Group XIII.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

N. Kroes, Counsel
INTRODUCTION

The Veteran served on active duty from January 1943 to November 1945.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO).  The case is now under the jurisdiction of the Portland, Oregon RO.  

A Board hearing was held before the undersigned in September 2012.  A transcript of this hearing is of record.  

In November 2012 and March 2013, the Board remanded this issue for further evidentiary development.  The case has now been returned to the Board for further appellate action.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran's lumbar spine disability is unrelated to his military service and service-connected residuals of a shell fragment wound of the right thigh, Muscle Group XIII.  


CONCLUSION OF LAW

Service connection for a lumbar spine disability is not warranted.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (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 & Supp. 2012)) 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).

The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing.  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 (AOJ) (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  See Pelegrini, 18 Vet. App. at 121.

A May 2009 letter, issued prior to the rating decision on appeal, provided the Veteran with notice regarding what information and evidence was needed to substantiate his claim for service connection for a lumbar spine disability (to include on a secondary basis), as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  This letter further advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations.  

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, a VA examination report, private treatment records, and hearing testimony.

The Veteran was provided an opportunity to set forth his contentions on the issue on appeal during the September 2012 hearing before the undersigned.  The Court has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).  The record reflects that at the September 2012 hearing the undersigned explained the issue, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing.

In addition, the Board notes that the case was remanded in November 2011 and March 2013 to obtain relevant private treatment records.  In response to a March 2013 letter from VA requesting authorization to obtain private records, the Veteran submitted a statement in May 2013 in which he indicated that he did not want further private treatment records obtained and wished for VA to decide the claim with the information of record.  Accordingly, the requirements of the remands were ultimately accomplished and the prior remand instructions were substantially complied with.  See Stegall v. West, 11 Vet. App. 268 (1998).  

The Veteran submitted additional private treatment records with his May 2013 statement.  Previously, in February 2013, the Veteran waived AOJ review of any evidence submitted at a later time.  See 38 C.F.R. § 20.1304(c) (2012).  In addition, the private treatment records, which show treatment for low back pain, are not pertinent to the claim as the existence of current low back pain is established elsewhere in the record.  See id.  For these reasons, remand to the AOJ to review the recently submitted private treatment records is not necessary.  

The Veteran underwent a VA examination in June 2009.  This examination is found to be adequate insofar as it thoroughly and accurately portrays the extent of the lumbar spine disability.  The examination report notes the relevant medical history including complaints as well as relevant findings such as range of motion and functional capacity.  Diagnostic testing, including X-rays, was reviewed.  Therefore the Board finds that the Veteran has been provided an adequate medical examination in conjunction with his claim.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that a medical opinion is adequate when it is based upon consideration of a claimant's prior medical history and examinations and describes the disability in sufficient detail so that the evaluation of the claimed disability will be a fully informed one).  

Referable to VA's duty to obtain an adequate medical opinion in this case, the June 2009 examination included an opinion as to whether the Veteran's lumbar spine disability was caused or aggravated by his service-connected residuals of a shell fragment wound of the right thigh, Muscle Group XIII.  A rationale was provided for the conclusion and the relevant history was considered.  While there is no opinion addressing whether the lumbar spine disability was caused or aggravated by service, such an opinion is not necessary in this case.  As explained below, there is no evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  Therefore, the Board finds that a medical opinion addressing direct service-connection is not necessary in this case and VA has obtained an adequate medical opinion regarding secondary service connection.  
	
As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  The Veteran was an active participant in the claims process by providing evidence and argument and presenting for a VA examination.  Thus, 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 notices is not shown to have any effect on the case or to cause injury to the Veteran.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II. Service Connection

The Veteran maintains that he has a current lumbar spine disability that was caused or aggravated by his service-connected residuals of a shell fragment wound of the right thigh, Muscle Group XIII.  

Service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).  In order to establish service connection for the claimed disorder, generally there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  

In the instant case, there is medical evidence demonstrating that the Veteran has a lumbar spine disability.  For example, after a VA examination in June 2009 he was diagnosed with lumbosacral spine strain with severe multilevel multifocal degenerative changes.  The first Hickson element has been satisfied.  

Turning to the second Hickson element, the Veteran does not contend that his lumbar spine disability began during service.  Instead, he asserts that the disability was caused or aggravated by his service-connected residuals of a shell fragment wound of the right thigh, Muscle Group XIII.  For example, during his June 2009 VA examination he reported that he began having increasing pain in his low back in 2003 and during his September 2012 hearing he testified that his back trouble did not start during service but believed it was because of walking differently as a result of his shell fragment wound.  Board Hearing Tr. at 12.  Service treatment records fail to reflect treatment or diagnosis related to a lumbar spine disability.  Given the above, the Board finds that the preponderance of the evidence is against a finding that the second Hickson element has been met.  As a result, service connection on a direct basis is not warranted.  

The crux of the Veteran's claim is that his current complaints were caused or aggravated by his service-connected residuals of a shell fragment wound of the right thigh, Muscle Group XIII.  A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310 (2012).  As explained above, a current lumbar spine disability is shown by medical evidence.  The remaining question is whether this lumbar spine disability was caused or permanently worsened by the service-connected residuals of a shell fragment wound of the right thigh, Muscle Group XIII.  

There is only one medical opinion of record regarding secondary service connection, that of the June 2009 VA examiner.  After conducting a physical examination of the Veteran, reviewing his claims file, and considering his account of symptomatology, the examiner determined that the Veteran's current lumbosacral spine strain with severe multilevel multifocal degenerative changes was "less likely as not" caused by or aggravated by his service-connected residuals of a shell fragment wound of the right thigh, Muscle Group XIII.  The examiner explained that there was no objective evidence that the right thigh injury caused the low back disability, and that there was no limitation of knee motion, strength was symmetric bilaterally, and limitation of hip motion was bilateral.    

The Boards finds the June 2009 opinion to be adequate and highly probative as it was made after a physical examination and a review of the relevant evidence, including the Veteran's own statements.  In addition, the examiner provided a rationale for the conclusions reached.  Thus, the Board places significant probative value on this opinion.  The Board has considered the Veteran's lay assertions that his lumbar spine disability is related to his service-connected residuals of a shell fragment wound of the right thigh, Muscle Group XIII; however, the Board finds the medical opinion adverse to the claim to be the most probative evidence regarding the question of secondary service connection.  Accordingly, service connection for a back disability is not warranted on a secondary basis.
 
In summary, the Board has considered the benefit of the doubt rule; however, since a preponderance of the evidence is against the award of service connection for a lumbar spine disability, on a direct or secondary basis, the benefit-of-the-doubt rule is not for further application.  38 U.S.C.A. § 5107 (West 2002).


ORDER

Service connection for a lumbar spine disability is denied.




____________________________________________
Donnie R. Hachey
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs