Citation Nr: 1318146 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 09-31 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The appellant served on active duty from September 1987 to September 1991 in the U.S. Army. He had subsequent service in the Army National Guard from 1992 through 2006, including a period of inactive duty for training ("INACDUTRA") from November 2 to November 3, 2002. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a June 2007 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Los Angeles, California, which denied the appellant's claim. In August 2012, the appellant testified during a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the appellant's claims folder. In November 2012, the Board remanded the claim to the Agency of original jurisdiction ("AOJ") for additional evidentiary development, specifically, to obtain additional treatment records and afford the appellant a VA examination. Thereafter, in a March 2013 Supplemental Statement of the Case ("SSOC"), the issue on appeal was readjudicated. There has been substantial compliance with the November 2012 remand, as an attempt to obtain the appellant's treatment records was made and he was provided with the requisite examination. The claim has been returned to the Board for further appellate proceedings. The Board notes that a portion of the appellant's records are contained in the Virtual VA system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a veteran's claim for benefits. FINDING OF FACT The most probative evidence of record demonstrates that the appellant's low back disorder, diagnosed as degenerative disc disease, is not is not etiologically-related to service. CONCLUSION OF LAW The criteria for service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. By means of a letter dated October 2006, the Appellant was informed of the types of evidence needed in order to substantiate his claim of entitlement to service connection, the division of responsibility between himself and VA for obtaining the required evidence, and was asked to provide any information or evidence in his possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). This letter also satisfied the requirements of Dingess/Hartman and informed the Appellant of how VA determines the disability rating and effective date elements of a claim. B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the appellant's available active service treatment records, an injury report for the lumbar back strain the appellant sustained during INACDUTRA, post-service treatment records, and a VA compensation and pension examination report dated December 2012. The claims folder also contains the appellant's statements and testimony in support of his claim. The appellant has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. Review of the VA examination report demonstrates that the examiner reviewed the pertinent evidence of record, elicited from the appellant his history of low back disorder symptomatology and treatment, performed a comprehensive examination, and provided the examination results, along with clear and concise reasons and bases for his conclusion that the appellant's low back disorder is not the result of the injury that occurred during INACDUTRA service in November 2002. The Board also concludes that reasonable efforts to develop evidence for the record have been made. In this regard, the Board notes that the appellant's active duty service treatment records, as well as his California Army National Guard treatment reports, are of record. Ultimately, the appellant submitted copies of records he had in his possession. In an April 2007 formal finding memorandum, the RO determined that all procedures to obtain service treatment records for the appellant had been correctly followed and exhausted; there is no evidence to suggest there are any additional outstanding service treatment records. Moreover, although the appellant identified treatment providers for his low back disorder on his benefits application, and during the appellant's informal RO conference, he reported that he would contact his primary care physician, and various medical specialists for his treatment records from about 2001 forward, he failed to respond to a November 2012 letter asking that he provide additional information so that any outstanding records could be obtained on his behalf. Although the appellant was also provided with VA forms giving VA authorization to obtain private treatment reports on his behalf, the appellant neither submitted these records on his own, nor completed the authorization forms allowing VA to attempt to obtain the records. In this regard, the Court has held that "[t]he duty to assist is not always a one-way street. 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). In this instance, the appellant had a duty to either submit any private treatment records in his possession, or complete the VA forms that were twice provided to him to allow VA to attempt to secure any private treatment records he identified. As the appellant chose not to provide this information, the Board will proceed with a decision based on the evidence of record. Furthermore, as noted above, the appellant was afforded a Board hearing in August 2012. In this regard, the Board observes that in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) 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 Board finds that the hearing generally was held in compliance with the provisions of Bryant. Further, a review of the record also reveals no assertion, by the appellant or his service organization representative, that VA or the VLJ failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Moreover, the appellant's submissions and statements, as well as those of his representative, demonstrate actual knowledge of the elements and evidence necessary to substantiate the claim because the submissions and statements focus on the evidence and elements necessary to substantiate the claim. As such, the Board finds that the VLJ complied with the duties set forth in Bryant and the claim may be adjudicated based on the current record. Cf. Procopio v. Shinseki, No. 11-1253 (Vet. App. Oct. 16, 2012). In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above, finds that the development of the claim has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay 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." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Active military service includes disability resulting from injury or disease incurred in or aggravated during active duty and ACDUTRA and disability resulting from injury (but not disease) incurred in or aggravated during inactive duty training ("INACDUTRA"). 38 U.S.C.A. §§ 101(21)-(24), 106; 38 C.F.R. § 3.6(a), (d). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Generally, this often consists of two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Generally, this often refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. To the extent the appellant is alleging that his disability is a result of injury or disease incurred or aggravated during his time in the Reserve, it must be remembered that only "veterans" are entitled to VA compensation under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303(a). Thus, to establish status as a "veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The fact that a claimant has established status as a "veteran" for purposes of other periods of service (e.g., his periods of active duty) does not obviate the need to establish that he is also a veteran for purposes of the period of ACDUTRA if the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Similarly, in order for the appellant to achieve "veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury (but not disease) incurred or aggravated during his INACDUTRA. See Mercado- Martinez, supra; Paulson, supra; Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Certain chronic diseases, such as arthritis, will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent disabling within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). This presumption, however, only applies to active duty service, not ACDUTRA or INACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins, supra. The Veteran claims that his current back disorder is the result of a back injury he sustained during a two-day period of INACDUTRA service with the California Army National Guard. A review of the evidence of record demonstrates that the appellant reported that on November 3, 2002, he was injured when he and two other soldiers were loading a tire for a five-ton truck into the back of a vehicle. In his sworn statement to the California Army National Guard, the appellant reported that, after loading the tire, he noticed that his lower back started hurting and reported the incident to his first sergeant. He said that he did not seek medical attention "because it didn't hurt too bad," but noted that the following day, when his low back felt worse, he told his first sergeant that he may need to see a doctor. The first report of record of medical treatment is a statement of medical examination and duty station, dated November 12, 2002, which shows that the appellant received outpatient treatment at the Los Angeles Air Force Base for a diagnosis of a lumbar back strain incurred in the line of duty during INACDUTRA. It was noted that appellant had a history of the same condition one year earlier. The clinician noted that the condition may result in a temporary disability. An Army memorandum, dated November 14, 2002, confirmed that the appellant's injury was incurred in the line of duty and indicated that if he required any follow-up care, it must be provided by a military treatment facility or a civilian treatment facility if approved in advance. It further noted that the appellant may be eligible for additional benefits if he were still disabled after the training period. However, there are no additional treatment reports of record (and the appellant has not claimed to have received any further treatment) that would indicate a chronic or continuing low back disability. Following the aforementioned treatment on November 12, 2002, the first evidence of record showing treatment for a back disorder was not until July 2005, when the appellant underwent an MRI of the lumbar spine for reports of low back pain radiating down the right leg with weakness following a lifting injury in May 2005. The impression was T11-12 and L5-S1 disc protrusions. Thereafter, in late July 2005, the appellant was found by the California Army National Guard to be unfit for duty as a result of multilevel degenerative disc disease with L5-S1 disc bulge. Subsequent treatment records show that, in August 2005, the appellant was seen by a private physician for a neurological consultation. The impression was lumbago, severe, and radiculopathy, right lower extremity. In December 2005, the appellant was seen by a private physician for complaints of low back and thoracic pain, which he said began after lifting a box at home in May 2005. It was noted that he was seen by his primary care physician, who diagnosed a back strain, and was later seen by a neurologist, who performed an MRI in August 2005 that revealed a small T5-T6 disc bulge. An x-ray revealed no evidence of spondylolysis or spondylolisthesis. The diagnoses were mechanical low back pain due to L5-S1 degenerative disc disease and facet changes, adult scoliosis and left leg length differential of about 2 centimeters resulting in a pelvic tilt which could exacerbate his mechanical low back pain symptoms. The physician prescribed physical therapy and a shoe insert to help level the pelvis. In January 2006, the appellant underwent an EMG/nerve conduction study for radiating back pain. The diagnosis included mild right L5 radiculopathy with bilateral L5-S1 paraspinal muscle irritation, which may reflect foraminal stenosis and possible lumbar degenerative disc disease at the L5-S1 level. There is no evidence that the appellant had subsequent complaints of back pain until March 2010, when he was seen by a private physician for complaints of low back pain after bending over and lifting a heavy object; there was no indication, however, as to when the incident occurred. The diagnosis was backache, unspecified. In August 2010, he returned to the clinician with complaints of low back pain with an onset of two days earlier. In July 2011, the appellant was again seen with complaints of lower back pain. The next treatment report shows he returned in February 2012 for several ailments, including back pain. The diagnosis was backache, unspecified. In December 2012, the appellant was afforded a VA examination for his complaints of a low back disorder. He told the examiner that he had injured his low back during the November 2002 INACDUTRA incident and was diagnosed with a lumbar strain after negative x-rays, with treatment consisting of ibuprofen and a muscle relaxant. It was noted that his back gradually improved over a few weeks without any physical therapy and was eventually diagnosed with scoliosis and degenerative disc disease. Following an examination, the diagnosis was degenerative disc disease with L5 radiculopathy. The VA examiner opined that the Veteran's degenerative disc disease was less likely than not incurred in, or caused by the Veteran's claimed INACDUTRA injury. She noted that while the Veteran lost three weeks from work following the accident, suggesting a more severe injury than a lumbar strain would require, she also noted that there were no subsequent treatment records demonstrating an ongoing disease process or chronic disability related to this initial injury. In this regard, she noted that lumbar strains are usually self-limited and do not result in long term disability. The examiner did acknowledge that the Veteran reported chronic back problems after the injury and said that he reinjured his back in the interval between 2002 and 2005, when he was diagnosed with degenerative disc disease. She observed, however, that despite his complaints of continuing injuries during this period, there were no treatment reports from that time period. She concluded that his current back disability was related to his degenerative disc disease and there was no indication of a chronic back disability following the 2002 California Army National Guard injury. Having reviewed the complete record, the Board finds that the preponderance of the evidence is against the appellant's claim of entitlement to service connection for a low back disorder. In this regard, while the Board has considered the Veteran's contention that his current back disorder, diagnosed as degenerative disc disease, is the result of his INACDUTRA injury, the Board places greater probative weight on the opinion of the VA examiner, who, after thoroughly reviewing the medical evidence of record, as well as taking into account the appellant's history concerning his disorder, found that it was less likely than not that his low back disorder was the result of his INACDUTRA service incident. In addition to the medical evidence of record, as noted above, the Board has also considered the appellant's lay statements (as well as the testimony of his wife during the Board hearing) that he has experienced chronic low back problems following the 2002 injury. The Court has repeatedly held that laypersons, such as the appellant and his wife, are competent to describe symptoms of which they have first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). As the Board finds that back pain is the type of symptom the appellant and his wife are competent to describe, their statements have some probative weight. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). However, there is no evidence that either the appellant or his wife have medical knowledge or training that would permit them either to diagnose, or determine the etiology of a complex spinal disorder like degenerative disc disease. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a claimant is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As such, although the Board acknowledges the appellant's belief that his current degenerative disc disease stems from his injury during INACDUTRA service, his statements in that regard are not competent. As noted above, the appellant was diagnosed in 2005 with adult-onset scoliosis. There is no evidence that the Veteran's scoliosis is related to a disease or injury in service to include related to a superimposed injury during his INACDUTRA service; service connection for scoliosis is not warranted. Accordingly, the Board concludes that the most probative evidence of record is against the appellant's claim of entitlement to service connection for a low back disorder. In arriving at the decision to deny the claim, the Board has considered the applicability of the "benefit-of-the-doubt" rule. However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a low back disorder is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs